Cbi vs Narayan Diwakar Etc. (National ... on 30 May, 2013

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Delhi District Court

Cbi vs Narayan Diwakar Etc. (National ... on 30 May, 2013

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                                            CBI Vs Narayan Diwakar etc. (National Building CGHS)
                                                                                   CC NO. 44/10
                                                                          Judgment dt. 30.5.2013



                       IN THE COURT OF 
 SPECIAL JUDGEII (PREVENTION OF CORRUPTION ACT, 1988)
                     CBI: ROHINI: DELHI

CBI Vs Narayan Diwakar etc. (National Building CGHS)
CC NO. 44/10
u/s 120B r/w Section 420/467/468/471 IPC &
13(2) r/w 13(1)(d) P.C. Act.
RC No. : BD1/2006/E/0002BS&FC
ID No. : 02404R0436752006

Central Bureau of Investigation
              Vs
1.  Narayan Diwakar, s/o Late C. Lal
r/o G30, Masjid Modh, Greater KailashII
New Delhi.

2. Jitendra Singh Sharma, s/o Late N.S. Sharma
r/o 1073/A3, Ward No. 1, Mehrauli, New Delhi.

3. Rakesh Kumar Sharma, s/o M.L. Sharma
r/o 2989/1E, Street No. 16, Old Ranjeet Nagar, New Delhi.

4. M.Kandaswami, s/o Late Sh. Marimuthu
r/o G3/187, II Floor, Sector16, Rohini, New Delhi. (Expired)

5. Prahlad Kumar Thirwani, s/o Late Moti Ram Thirwani
r/o 348E, PocketII, Mayur Vihar, PhaseI, Delhi.

6. Prem Narain Sharma @R.P. Sharma @ Ram Prakash Sharma, 
s/o Sh. R.S. Sharma, r/o Flat No. 231, Pocket5, Mayur Vihar 
PhaseI, Delhi.
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                                                       CBI Vs Narayan Diwakar etc. (National Building CGHS)
                                                                                              CC NO. 44/10
                                                                                     Judgment dt. 30.5.2013



Date of concluding the final arguments : 21.5.2013
Date of judgment : 30.5.2013
J U D G M E N T

In pursuance of order dated 2.8.2005 of Hon'ble Delhi High Court in Civil Writ Petition No. 10066/2004 directing CBI to conduct thorough investigation in the whole matter relating to 135 Cooperative Group Housing Societies, a preliminary enquiry was registered against few societies including Kevalya Vihar CGHS Ltd. (formerly known as National Building Organization Employees CGHS Ltd.) and it was later on converted into Regular Case and the instant RC was registered u/s 120B r/w 420/467/468/471 IPC and Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act 1988 against Narayan Diwakarthe then RCS, New Delhi; Jitender Singh Sharmathe then Assistant Registrar, Rakesh Kumar Sharmathe then UDC/Dealing Assistant; M.KandaswamiGradeIII Stenographer all in office of RCS, New Delhi (since deceased) and Harpreet Singh Khurmi, private person and other unknown persons.

Investigation has revealed that National Building Organization Employees Group Housing Society Lted. (herein after referred as NBO Employees CGHS Ltd.) was registered in office of Registrar Cooperative Societies, Delhi on 25.7.1971 vide registration no. 71(H) with 20 promoter members. The registered office of this 3 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 society was 'G' Wing, Nirman Bhawan, Delhi. The membership of the society was restricted to the staff of the NBO Employees CGHS Ltd. as per point 5(i)(a) of ByeLaws of this society. Investigation revealed that National Building Organization was not a capacious department. The Delhi Development Authority required 50 members in the society for allotment of land but the society had only 35 members. In this regard, General Body Meeting was held on 19.7.1977 and a special committee of four members namely Kailash Nath, B.S. Bhatti, Satish Kumar and A.L. Menon was resolved to meet the Delhi Development Authority to apprise them of difficulty in getting land due to less members. Finally, land was not alloted to this society. The society became inoperative due to non fulfillment of objectives formulated in the byelaws and being unable to comply with the provision of DCS Rules, 1973. Therefore, Sh. Ashok Bakshi, Dy. Registrar O/o RCS, Delhi issued winding up order dated 14.02.1979. Thereafter, the society remained defunct.

Investigation has revealed that during the year 2003 accused N. Diwakar (A1) the then Registrar Cooperative Societies, New Delhi; Jitender Singh Sharma (A2), the then Assistant Registrar o/o RCS New Delhi; Rakesh Kumar Sharma (A3), UDC/Dealing Assistant, o/o RCS New Delhi; M.Kandaswami (A4), the then Stenographer GradeIII, o/o RCS New Delhi (Since deceased); Prahlad 4 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Kumar Thirwani (A5), the then Senior Auditor, o/o RCS New Delhi and Prem Narayan Sharma (A6) @ R.P. Sharma entered into a criminal conspiracy with a common object to cheat DDA in alloting land in the name of Kevalya Vihar CGHS Ltd. (Formerly known as National Building Organization Employees CGHS Ltd.) on the basis of false and forged documents and false freeze list of members.

Investigation revealed that Prem Narayan Sharma (A6) @ P.N. Sharma s/o Late R.S. Sharma r/o Flat No. 231, Pocket5, Mayur Vihar PhaseI, Delhi was posted as Economic Officer in National Building Organization, Ministry of Works and Housing, Govt. Of India having his office at 'G' Wing, Nirman Bhawan, New Delhi. In the year 2002, pursuant to above criminal conspiracy Prem Narayan Sharma dishonestly and illegally in a clandestine manner removed the documents of NBO Employees CGHS Ltd from the office of the society and forged the said documents with the intention to pave the way for the revival of defunct society NBO Employees CGHS Ltd. in the RCS office. Prem Narayan Sharma (A6) knowingly, dishonestly and fraudulently impersonated himself as 'Ram Prakash Sharma' @ R.P.Sharma, President of the society, intending that the forged documents shall be used for the purpose of cheating by forwarding the freeze list of members to DDA for allotment of land in conspiracy with N. Diwakar (A1), Jitender Singh Sharma (A2), Rakesh Kumar 5 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Sharma (A3), M. Kandaswami (A4), Prahlad Kumar Thirwani (A5), Officials of RCS, New Delhi.

Investigation revealed that pursuant to above criminal conspiracy Prem Narayan Sharma (A6) in order to increase the strength of the members, fraudulently prepared the false proceedings dtd. 20.1.1979 of the managing committee of the society Kevalya Vihar CGHS Ltd., formerly known as National Building organization Employees CGHS Ltd., showing enrollment of 32 fake members; proceedings dt. 30.1.1979 showing enrollment of 63 fake members and resignation of 14 promoter members; proceedings dtd 5.2.1979 showing enrollment of 19 fake members and resignation of 18 promoter members; proceedings dtd 10.2.1979showing resignation of 7 promoter members. Prem Naryayan Sharma (A6) has also forged the proceeding of the General Body Meeting dated 16.1.1979 wherein he has falsely shown that B.S. Bhatti was elected as President, S.C. Malik as VicePresident, Kailash Nath as Secretary, V.K. Seth, Guru Narayan Mehra, T.R. Bhatia, Smt. Omwati Garg as Managing Committee (M.C.) Members Prem Narayan Sharma (A6) has forged the signature of B.S. Bhatti, S.C. Malik and Kailash Nath on the aforesaid documents. Prem Narayan Sharma (A6) in criminal conspiracy with Jitender Singh Sharma (A2) fraudulently prepared a false proceedings of Annual General Body Meeting dated 25.12.2002 6 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 showing change of address of the society from 'G' Wing, Nirman Bhawan, New Delhi to B8/6146, Vasant Kunj, New Delhi. Investigation has revealed that Kevalya Vihar CGHS Ltd., (formely known as National Building Organization Employees CGHS Ltd.) never exited and functioned at the address B8/6146, Vasant Kunj, New Delhi. The said premises is the residence of Sarfraz Ahmed, EXM.P. Prem Narayan Sharma (A6) in conspiracy with Jitender Singh Sharma (A2) deliberately opted the above address because of its location under the jurisdiction area of Jitender Singh Sharma (A2). Prem Narayan Sharma (A6) has also fraudulently prepared false proceedings of Extra Ordinary General Body Meeting dt. 20.2.2003 showing change the name of the society as Kevalya Vihar CGHS Ltd. from National Building Organization Employees CGHS Ltd. Prem Narayan Sharma (A6) has also fraudulently prepared false proceedings of M.C. Meeting dt. 1.4.2003 showing resignation of 3 members and enrollment of Subhash Dabas, Smt. Parminder Kaur and Vikas Choudhary as new members. Prem Narayan Sharma (A6) forged the list of 114 members in the Membership Register to show increased strength of members.

Investigation revealed that pursuant to above criminal conspiracy Prem Narayan Sharma fraudulently prepared forged enrollment letters and affidavits of above said 114 fake members and 7 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 also forged resignation letters of 36 promoter/old members of the society. The promoter members have denied their signature on the resignation letters. Investigation revealed that all the 114 members falsely enrolled by Prem Narayan Sharma were found fictitious. Registered letters were sent to the members, which returned undelievered being nonexistent.

Investigation further revealed that Prem Narayan @ Ram Prakash Sharma @ R.P. Sharma, Secretary of the society, pursuant to the said criminal conspiracy with Narayan Diwakar (A1), Jitender Singh Sharma (A2) and Rakesh Kumar Sharma (A3) fraudulently and dishonestly submitted a forged application dated 25.2.2003 to RCS office, signing as 'Ram Prakash Sharma' for revival of NBO employees CGHS Ltd. Prem Narayan Sharma enclosed with the above application false proceedings of Extraordinary General Body Meeting, Annual General Body Meeting, agenda note and amended bye laws to change the name of the society from National Building Organization Employees CGHS Ltd., GWing, Nirman Bhawan, New Delhi to Kevalya Vihar CGHS Ltd., B8/6146, Vasant Kunj, New Delhi.

Investigation has further revealed that pursuant to the above criminal conspiracy N.Diwakar (A1) marked this application to Jitender Singh Sharma (A2), Asstt. Registrar (SW Zone) who further marked this application to Rakesh Kumar Sharma (A3), UDC/Dealing 8 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Asstt. Rakesh Kumar Sharma (A3) dishonestly processed the above said application without ascertaining the genuineness of the documents and identity of R.P. Sharma, Secretary of the society. Further Rakesh Kumar Sharma (A3) dishonestly proposed to Jitender Singh Sharma (A2) to cancel the winding up order of the society vide his note 6.3.3003. Jitender Singh Sharma (A2) has deliberately accepted the aforesaid forged application and proposal and forwarded the same to N.Diwakar (A1) for cancellation of winding up order dt. 14.2.79. N.Diwakar (A1) ordered to issue process for the appearance of the President/Secretary of NBO Employees CGHS Ltd. on 11.3.2003 with original records.

Investigation has further revealed that pursuant to the criminal conspiracy on 11.3.2003, Prem Narayan Sharma has caused his appearance in RCS office impersonating himself as R.P. Sharma, Secretary of Kevalya Vihar CGHS Ltd. N.Diwakar (A1) without ascertaining the genuineness of the documents and identity of alleged R.P.Sharma, Secretary of the society sent the file to Jitender Singh Sharma (A2) for verification who endorsed the file to Rakesh Kumar Sharma (A3). Prem Narayan Sharma @ R.P. Sharma knowingly on 18.3.3003 produced the forged records in the i.e. copy of the proceeding of resignation and enrollment of members, copies of application of members, 114 original affidavits, list of 114 members of 9 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 the society, before Rakesh Kumar Sharma (A3) for verification. Prem Narayan Sharma also produced a forged affidavit in the assumed name of Anurag, Secretary of the society wherein false details of resignation and enrollment of members were given by him. Prem Narayan Sharma has also forged the signatures of Ram Prakash Sharma on this said affidavit. Rakesh Kumar Sharma (A3), knowingly accepted as genuine the aforesaid forged documents from Prem Narayan Sharma and sent the forged documents to Jitender Singh Sharma (A2).

Investigation further revealed that pursuant to the criminal conspiracy Jitender Singh Sharma (A2) on 20.03.2003 by abusing his official position as public servant by corrupt and illegal means fraudulently and dishonestly confirmed that the freeze strength of the society is 114 and all the documents have been checked and verified and forwarded the file to N.Diwakar (A1)the Registrar for cancellation of winding up order dt. 14.2.79 and revival of society Kevalya Vihar CGHS Ltd.

Investigation further revealed that pursuant to the criminal conspiracy Narayan Diwakar (A1) by abusing his official position as a public servant by corrupt and illegal means has dishonestly accepted the proposal of Jitender Singh Sharma (A2) to revive the society and fraudulently recorded in the note sheet on 20.03.2003 that R.P. Sharma, President of the society present and verification has been 10 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 completed from the concerned zone. N.Diwakar (A1) on the basis of the false representation by Prem Narayan Sharma @ Ram Prakash Sharma @ R.P. Sharma, forged record i.e. proceedings of resignation and enrollment of members, resignation letters, enrollment applications of members, 114 affidavits, list of 114 members of the society, false proposal of Jitender Singh Sharma (A2) and Rakesh Kumar Sharma (A3) and in pursuance of criminal conspiracy with Prem Narayan Sharma @ Ram Prakash Sharma, illegally passed an order dated 26.3.2003 for revival of the said society and dishonestly approved the freeze strength of the members of the society as 114. N.Diwakar (A1) also deputed vide said order M.Kandaswami, Grade III, O/o RCS as Election Officer to conduct the election of the Managing Committee of the society within two months. N.Diwakar (A1) also ordered to get completed the audit of the society within 2 months time to show that the society was functional.

Investigation further revealed that pursuant to the above criminal conspiracy on 27.03.2003 J.S. Sharma (A2) Asstt. Registrar to caused undue favour to Prem Narayan Sharma (A6) by hastily forwarding the approved list of 114 members to Asstt. Registrar (Policy), Cooperative Societies, Delhi for onward transmission to DDA for allotment of land, even without holding the election and audit of the society. Sh. Yogi Raj, Asstt. Registrar (Policy) accordingly sent the 11 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 list of society Kevalya Vihar CGHS Ltd. for allotment of land to DDA.

Investigation revealed that pursuant to above criminal conspiracy M.Kandaswami (A4) GradeIII O/o RCS dishonestly prepared false election report without holding any such election of managing committee. M.Kandaswami (A4) has falsely shown that election was conducted on 11.5.2003 in the premises of the society in which Subhash Dabas as President, Sh. Vikash Choudhary as Vice President, B.K. Chandola, R.P.S. Rathore, Smt. Parminder Kaur and Smt. Malti Deviall as MC Members were elected unopposed. Investigation revealed that no such election was held and M.Kandaswami did not visit the office of the society. The said false report was deliberately accepted by Jitender Singh Sharma to show the society in existence and functional.

Investigation revealed that pursuant to above criminal conspiracy Jitender Singh SharmaAsstt. Registrar Cooperative Societies (Audit) has deputed vide order no. Dept.AR/Audit/2002/419 dt. 31.3.2003 Prahlad Kumar Thirwani, Auditor O/o RCS to conduct the audit of the records of the society from 197374 to 20012002. Prahlad Kumar Thirwani has fraudulently prepared a false audit report for the period of 197374 to 2002 for the period of 32 years instead of 3 years, without inspecting and ascertaining genuineness of the account books of the society. Prahlad Kumar Thirwani has not 12 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 conducted audit at the office of the society in contravention of the rules. Investigation has revealed that Kevalya Vihar CGHS Ltd. was not functioning and existing at the given address i.e. B8/6146, Vasant Kunj, New Delhi as the said premises was the residential accommodation of Sh. Sarfraz Ahmed ExMP. Prahlad Kumar Thirwani has also forged the signatures of fictitious person Anurag (Secretary) and Ved Prakash in the said false audit report. Prem Narayan Sharma (A6) provided the documents to Prahlad Kumar Thirwani wherein Anurag and one Ved Prakash were shown as Secretary and Treasurer of the society. Prem Narayan Sharma (A6) had forged the signature of aforesaid both the fictitious persons on the said documents.

Investigation has revealed that pursuant to above criminal conspiracy Prem Narayan Sharma (A6) sold the society to Harpreet Singh Khurmi. Prem Narayan Sharma after fraudulently showing the resignation of the nonexistent 114 members and thereafter the persons nominated by Harpreet Singh Khurmi were made members. No independent corroboration could be obtained regarding the aforesaid sale transaction and investigation could not reveal sufficient evidence to conclude about criminal liability on the part of Harpreet Singh Khurmi.

CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Investigation has further revealed that during the period 01.01.2001 to 30.06.2004 N.Diwakar the then RCS New Delhi has dishonestly and by abusing his official position as public servant by corrupt and illegal means, illegally revived 84 defunct societies.

Investigation disclosed that pursuant to the aforesaid criminal conspiracy Narayan Diwakar (A1), the then Registrar of Cooperative Societies, New Delhi, Jitender Singh Sharma (A2) the then Asstt. Registrar, Rakesh Kumar Shrma(A3), the then UDC/Dealing Assistant, M.Kandaswami (A4) the then Stenographer GradeIII, Prahlad Kumar Thirwani (A5) the then Auditor by abusing their official position as public servants by corrupt and illegal means in criminal conspiracy with Prem Narayan Sharma (A6) @ Ram Prakash Sharma @R.P. Sharma had knowingly used as genuine the aforesaid forged documents which they knew or has reason to believe to be forged documents intending that the said forged documents shall be used for the purpose of cheating i.e. fraudulently and dishonestly inducing the DDA to deliver land on the basis of the aforesaid forged freeze list of 114 members. Narayan Diwakar (A1), Jitender Singh Sharma (A2), Rakesh Kumar Shrma(A3), M.Kandaswami (A4), Prahlad Kumar Thirwani (A5)have also attempted to commit the offence of criminal misconduct by corrupt or illegal means, by abusing their official position as public servants and facilitated the revival of 14 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 the said society and approval of freeze list of the members of NBO Employees CGHS Ltd./Kevalya Vihar CGHS Ltd. for the allotment of land by DDA in favour of the said society and thereby attempted to cheat DDA to get fraudulent allotment of land in favour of the said society.

Ld. Public Prosecutor submits that there is a prima facie evidence oral and documentary to show that accused namely Narayan Diwakar (A1), Jitender Singh Sharma (A2), Rakesh Kumar Sharma (A3), M. Kandaswami (A4), Prahlad Kumar Thirwani (A5) and Prem Narayan Sharma (A6) have committed offences u/s 120B r/w 419/420/468/471 IPC and 13(2) r/w 13(1)(d) of PC Act, 1988 and substantive offences u/s 15 r/w 13(1)(d) of PC Act, 1988 against N.Diwakar (A1), Rakesh Kumar Shrma(A3), M.Kandaswami (A4), Prahlad Kumar Thirwani (A5) and substantive offences u/s 468/471 IPC against Prahlad Kumar Thirwani (A5) and substantive offences u/s 420/511/468/471 IPC against Prem Narayan Sharma (A6).

Ld. Public Prosecutor has drawn my attention to the fact that sanction for prosecution has been accorded by the Competent Authority against accused public servants Jitender Singh Sharma (A2) the then Asstt. Registrar, Rakesh Kumar Shrma(A3), the then UDC/Dealing Assistant, M.Kandaswami (A4) the then Stenographer GradeIII, Prahlad Kumar Thirwani (A5) the then Senior Auditor all 15 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 officials of O/o Registrar Cooperative Society, Parliament Street, New Delhi and enclosed for taking cognizance by this court.

It is further submitted that N.Diwakar (A1) RCS Delhi had retired from service wef 30.04.2004 hence sanction u/s 19 of P. C. Act was not required for his prosecution.

Ld. Public Prosecutor submits that during the investigation the allegations against Harpreet Singh Khurmi, a FIR named accused, could not be substantiated hence his name is shown in column no. 12

(i) of this chargesheet.

Ld. Public Prosecutor further submits that M.Kandaswami (A4)had expired during trial and proceedings against him abated on 11.08.2011.

C H A R G E S On the above stated facts, charge sheet was filed, cognizance was taken and accused persons were summoned. After hearing arguments on charge, charge was framed under Section 120B read with Section 419/420/511/468/471 IPC and Section 13(2) read with Section 13(1)(d) of P. C. Act 1988 read with Section 15 of P.C. Act, 1988 against all the accused persons.

Substantial charges under Section 15 of P. C. Act r/w Section 13(2) r/w Section 13(1)(d) of PC Act were framed against accused A1 Narayan Diwakar, A2 J.S. Sharma, A3 Rakesh Kumar 16 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Sharma, A4 M.Kandaswami (since expired) and A5 Prahlad Kumar Thirwani.

Substantial charge under Section 419/420 IPC read with Section 511/468/471 IPC was framed against A6 Prem Narayan Sharma.

All the accused persons had pleaded not guilty and claimed trial.

P R O S E C U T I O N E V I D E N C E Prosecution examined in all 59 witnesses. For sake of convenience and brevity, I am grouping these witnesses as under:

Postmen and residents of the addresses in the freeze list and PW35 PW35 Mahender Singh, Assistant Engineer in the CPWD Aram Bagh provided information to the CBI which is proved as Ext.PW35/A. In this letter, information regarding four addresses of Aram Bagh and its residents have been given. As per this information, in respect of house no. 168A, 173B, 182B of Aram Bagh and at Y20 CG Road, Aram Bagh, the allottees were K.M. Hargovindam, Jagdish Chand, Duley Chand and Deodar Singh respectively. I may point out that as per freeze list Ext.PW43/A1, on 168A Kamlanand; on 182B Smt. Ramwati and on Y20 N.D. Sharda had resided. However, there 17 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 is no reference to address 173B in the freeze list, therefore, this address is irrelevant to this case. From the testimony of PW35 it stands proved that no person namely Ramwati, Kamlanand and N.D. Sharma ever resided at these addresses.

The Investigating Officer during his investigation sent notices through registered letters to the members at their addresses as per the freeze list. However, all the letters (which are D29 to D141) were received back by the CBI undelivered. These letters are collectively exhibited as Ext.PW59/A6.

Prosecution examined the postmen who went to deliver the said registered letters to prove that the respective letters could not be delivered because of the reason that either the address did not exist or the addressee did not reside at the given address.

Postmen are PW1 to PW18 & PW49. Apart from them, prosecution also examined PW19 to PW28, PW41 & PW42 who reside at the addresses given in the freeze list and they testified that they or their family members were not the members of the Kevalya Vihar CGHS or National Building CGHS.

What the aforesaid witnesses prove?

It is argued by Ld. Defence Counsels that the endorsements of postmen, to the effect that addressees or the addresses do not exist, does not prove anything. I disagree with their submissions.

CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Prosecution has led overwhelming evidence by proving that the postmen had visited the given addresses and either they did not find the address or if said address existed, no such person as named as addressee lived there. Further, wherever the address existed, prosecution examined the concerned resident as mentioned above to prove that no such person as mentioned in the freeze list as a member against the said address ever resided there. This proves beyond reasonable doubt that all the members of the freeze list were fake members and infact did not exist. I may point out that the accused persons had an opportunity in their defence to produce at least some member shown in the freeze list who could have testified that he was not only a member but also resided there but no such effort was made by any of the accused. Therefore, I am convinced that all the members in the freeze list are fake.

The original members of National Building Organization CGHS As per prosecution, there were 35 members of the society soon after its formation. These 35 members are being referred to as promoter members. Prosecution has examined some of them namely PW37, PW38, PW45, PW52 & PW57. All these witnesses have testified that they never submitted their resignation from the membership of the society. They also did not know any person namely R.P. Sharma or Anurag being the members of the society or 19 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 the office bearers of the society.

PW29 Harpreet Singh Khurmi He is an architect by profession. He testified that a builder namely Subhash Dabas was running a company by the name and style of Tirupati Constructions Ltd. at Dwarka. He testified that Prem Narayan Sharma had introduced himself as R.P. Sharma in the year 2003 and claimed to be the President of Kevalya Vihar CGHS. He testified that P.N. Sharma got the list of 114 members approved from the office of RCS and handed over all the documents to him which were later seized by CBI.

PW30 Vikas Chaudhary testifed that he worked with Subhash Dabas as Manager and that Subhash Dabas was the owner of Tirupati Construction Co. at Rohini. He testified that he was made the member of NBO/Kevalya Vihar CGHS in the year 2003 through Harpreet Singh Khurmi and became Vice President of the society after obtaining membership.

RCS Officials PW31 Krishan Kumaran official posted in the office of RCS handed over the order dt. 26.03.2003 in respect of the revival of NBO CGHS to the Investigating Officer of this case.

PW36 Yogi RajAssistant Registrar in the office of RCS proved the list of 114 approved members of the society which were 20 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 sent to DDA through a letter of J.S. Sharmathe then AR. The list of 114 approved members was proved as Ext.PW33/B and the letter of J.S. Sharma (A2) has been proved as Ext.PW36/A. PW43 Manmohan Singh, a Head Clerk in the office of RCS, proved the postings of the accused persons, notesheets, orders in proceedings written by them as well as their signatures.

PW48 M.P. Sharma, the Assistant Registrar in the RCS office, testified that he provided the details of the societies revived by Narayan Diwakar, the then RCS, to CBI vide letter Ext.PW48/A and the name of Kevalya Vihar CGHS appears at serial no. 46 in the said list.

PW50 Ashok Bakshi was Dy. Registrar in the office of RCS from September1977 to October1979. He testified that he had wound up the National Building Organization CGHS vide order dt. 14.02.1972 which is Ext.PW50/A2. He also testified that he was delegated with the powers to wound up the society.

PW51 Bhupinder Singh was Assistant Registrar (South West) from 2006 to 2007. He testified about the rules and procedures under Delhi Cooperative Societies Act & Rules.

PW53 Manoj Kumar was posted as an Inspector in the office of RCS at Parliament Street, New Delhi wef 2003 to 2007. He had proved the memo D13 vide which he had given the files 21 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 pertaining to Kevalya Vihar CGHS and other societies to Sh. S.K. Kashyap, Addl. Superintendent of Police, CBI.

PW54 Sanjeev Bharti, a stenographer in the office of RCS, identified the signatures of accused J.S. Sharma, P.K. Thirwani and Rakesh Kumar and Narayan Diwakar and also proved the proceedings and signatures of these accused persons.

PW55 Ms. Aruna Chaudhary was Assistant Registrar in the RCS office from April 2006 to September 2008. She testified about the procedure as to how the audit is to be conducted by the auditor. DDA Officials PW33 Virender Singh proved the list of the members approved by Registrar pertaining to Kevalya Vihar CGHS, which was sent by RCS to DDA. He testified that land to a society is allotted as per the seniority of the registration number.

PW34 Krishan Gopal Kashyap was Dy. DirectorDDA wef 19.10.2004 to 31.08.2009. Prior to this posting, he also remained as Assistant Director for three years in Group Housing Branch. He testified that before 1991, land used to be allotted on the first come first out basis, but, after a decision in Kaveri CGHS, land was started to be alloted on the basis of the seniority fixed by the RCS. Witnesses proving sanctions PW40 R.Narayanaswami, the Chief Secretary Government 22 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 NCT of Delhi accorded sanction to prosecute accused P.K. Thirwani (A5).

PW46 Rajneesh TingalUnder Secretary in the Ministry of Home Affairs was the competent authority who conveyed sanction to prosecute accused J.S. Sharma.

PW47 S.K. ChaudharyDy. Director General, NCCDelhi State accorded sanction to prosecute accused Rakesh Kumar Sharma. Witnesses concerning affidavits PW32 Ashok KumarUDC posted in the office of Additional Commissioner (Revenue)Delhi handed over the original stamp sale register in respect of P.R. Bhatia, Stamp Vendor, for the period 05.12.2002 to 19.02.2003 and for the period 09.01.2003 to 15.03.2003, relevant copy of which is proved as Ext.PW39/A. PW39 Awanish Kumar Tripathi, assistant to P.R. Bhatia stamp vendor, testified that he had sold the stamp papers bearing no.'s 181674 to 181723 to Kevalya Vihar CGHS, New Delhi on 11.03.2003. On seeing the affidavits at pages 1/C to 113/C in D2 Vol. II, he testified that all the affidavits bear his seal on the back side of each affidavit which were sold by him. The affidavits were collectively exhibited as Ext.PW39/A. The original sale register pertaining to the period 09.01.2003 to 15.03.2003 was produced and the relevant copies of page 767 and 768 were compared with the original.

CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Similarly, he testified that the stamp papers placed at pages 45/C to 60/C and on pages 1/C & 2/C bear the seal and the date of the stamp vendor P.R. Bhatia and all those stamp papers were collectively exhibited as Ext.PW39/B. PW44 C.B. Arya is the Notary sitting at Parliament Street Courts Compound, New Delhi and testified that the signatures purported to have been notarized by him on pages 27/C and 37/C do not pertain to him. Even the seal impression is not of his seal. He testified that this affidavit Ext.PW44/A placed in D2 Vol. IV was not attested by him. Same was his testimony in respect of the affidavit Ext. PW44/B dt. 20.03.2003 purportedly having been executed by Anurag.

Other witnesses PW56 S. P. Singh was posted at Nirman Bhawan in the Directorate of Estate as Assistant Director. He had proved the seizure memo dated 3.4.2006 D17 vide which he had handed over the documents mentioned therein to the CBI. He had also proved the applications (D28) from A1 to A11 pertaining to P. N. Sharma, which were handed over vide seizure memo D17 to CBI. Prosecution has examined this witness to prove the admitted handwritings of accused P.N. Sharma.

PW58 Dr. S.Ahmad, the Assistant GEQD, Central Forensic InstituteBhopal had examined the questioned documents with the 24 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 specimen handwritings/signatures of accused P.N. Sharma, Narayan Diwakar, Rakesh Kumar Sharma and P.K. Thirwani. None of the RCS officials have assailed his report as all the officials admitted their signatures. He has also given his opinion on the questioned documents and after comparing the same with the admitted and specimen signatures/handwritings of accused P.N. Sharma, he gave his report about the matching of the two. This report has been seriously and strongly assailed by accused P.N. Sharma which would be discussed at a later stage.

PW59 Inspector Surender Singh is the Investigating Officer. STATEMENTS U/S 313 CrPC In the statement u/s 313 CrPC, accused P.N. Sharma (A6) denied having forged any document. He alleged that the Investigating Officer was dishonest and the actual offender was Harpreet Singh Khurmi, a builder/contractor by profession. He stated that with a view to save Harpreet Singh Khurmi, the Investigating Officer has implicated him (i.e.A6) in the present case. He stated that when he was called in the office of the CBI, Harpreet Singh Khurmi was also present and the investigating officer suggested to him that if he found someone with the name of Ram Prakash Sharma or R.P. Sharma, he (i.e. Harpreet Singh Khurmi) can get rid of the case. On this suggestion, Harpreet Singh Khurmi suggested that P.N. Sharma can be 25 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 shown as R.P. Sharma or Ram Prakash Sharma. This is how the investigating officer falsely implicated him (i.e. A6). He also stated that he had never given any specimen handwriting or signatures to investigating officer or to any other official of CBI in this case. He preferred to lead evidence in defence.

Remaining accused persons are RCS officials. They admitted having written the note sheets etc. Narayan Diwakar admitted to have pass the revival order. However, all of them denied any dishonest intention or abuse of official position or having been in conspiracy with P.N. Sharma. Except accused Rakesh Kumar Sharma, none of them preferred to lead evidence in defence.

DEFENCE WITNESSES Accused Rakesh Kumar Sharma (A3) examined one defence witness namely Rohtash Kumar (A3/DW1), Accounts Officer, NCC Department, Old Secretariat, Delhi. He testified that no inquiry was instituted for the purpose of granting sanction for prosecution against accused Raksh Kumar Sharma.

Accused P.N. Sharma (A6) examined himself as defence witness (A6/DW1). He also examined R.N. Azad (A6/DW2) a retired CBI Officer and presently working as Pairavi Officer in my court.

CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Kaveri CGHS Judgment of High Court of Delhi Ld. Public Prosecutor argues that in Kaveri Cooperative Group Housing Society Ltd. Vs Union of India (AIR 1991 Delhi

217), Delhi High Court had ordered the criteria of seniority of the society as per the date of their registration for the purpose of allotment of land, so as to stop the bunglings in the office of RCS but the RCS officials were smart enough to defeat the purpose of that judgment and had invented a new trick by fraudulently reviving the defunct/wound up societies at the instance of builder mafia. This was done because the registration number of such society would be high in seniority list on account of its early date of registration.

For sake of understanding the logic of Hon'ble High Court of Delhi in Kaveri CGHS judgment, I would like to reproduce the relevant paragraphs from this judgment as under :

"Where in respect of allotment of land by the Delhi Development authority (DDA) to the Group Housing Societies, under the Delhi Development Authority (Disposal of Developed Nazul Land) Rules (1981) framed under S. 22 read with S. 56 of the Delhi Development Act (1957), an office memorandum was issued determining seniority on the basis of finalisation of list of members of such societies by the Registrar, Co 27 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 operative Societies, instead of earlier criteria of date of registration of such Societies, the said office memorandum was unreasonable and hence arbitrary. The main principle which has been set out in the said office memorandum is that the seniority is to be determined with effect from the date on which the papers of the Society have been found in order and approved by the office of the Registrar, Co operative Societies. The effect of this is that irrespective of the date when the Societies were registered, the seniority will not be determined with effect from the date of registration nor with effect from the date when the list of members were submitted, but is to be determined with effect from the date when the Registrar accords its approval to the list so filed. This criteria is unreasonable, to say the least. The effect of this principle is that the societies have been left at the mercy of the Registrar of Co operative Societies. There may be cases, and they probably are, where full particulars may not have been supplied by the societies. But as and when verification has taken place, it must necessarily relate back to the date when the list of members was filed. There are numerous instances which show that with no fault of the societies they have been relegated to a lower position in the seniority list, as there are societies where the lists were verified number of years after they had been submitted even though no defects were indicated in the list 28 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 originally filed."

In this judgment it was specifically held that land was to be allotted to the society according to the seniority i.e. date of registration. The purpose of this judgment was to restrict the powers of RCS so that these powers are not abused. However, RCS officials and builder mafia joined hands and made most of the new criteria laid by Hon'ble High Court, by reviving the defunct/wound up societies by creating fake members and fake documents. Since there were very old societies, there had a greater and earlier chance of getting the land.

Law in respect of Section 13(1)(d)(III) of Prevention of Corruption Act 1988 One of the main and most important submission on behalf of all these public servants is that they had done the work in routine manner and have relied upon the documents furnished by the society and they had no knowledge that the said documents were forged. It is, therefore, argued that they had acted in routine manner without having any knowledge of the forgery or without having any intention to abuse the official position. In view of these common submissions, the court is faced with the question as to whether the mens rea in form of intent or knowledge is a necessary ingredient of Section 13(1)(d) of Prevention of Corruption Act. 1988.

CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 It is argued by Ld. Public Prosecutor that till recently, no judgment had thrown any light on this aspect. Therefore, when this question arose before Hon'ble High Court of Delhi, Hon'ble Mr. Justice S. Muralidhar vide his order dated 24.09.2009 referred this issue to a larger Bench. Accordingly, this issue was considered by Hon'ble Mr. Justice S.Ravindra Bhat and Hon'ble Mr. Justice G.P. Mittal in CRL.A. 482/2002, CRL.A. 509/2002 and CRL.A.484/2002 i.e. Runu Ghosh, T.Rama Rao and Sukhram Vs CBI vide judgment dated 21.12.2011. I reproduce the relevant paragraphs of the judgment as under:

"73. Having regard to the previous history of the statute, the amendments to the 1947 Act, its avowed objects and the distinctive structure which Parliament adopted consciously, under the 1988 Act, despite being aware of the preexisting law, as well as the decisions of the Court the conclusion which this Court draws is that mens rea is inessential to convict an accused for the offence under Section 13(1)(d)(iii). It would be sufficient if the prosecution proves that the public servant "obtains" by his act, pecuniary advantage or valuable thing, to another, without public interest. The inclusion of public interest, in the opinion of the Court, tips the scale in favour of a construction which does not require proof of mens rea. There can be many acts of a public servant, which result in pecuniary advantage, or obtaining of a valuable thing to someone else; typically these may relate to payment of royalty, grant of license or concessions, issuance of permits, authorizations, etc. Yet, such grants, concessions, or other forms of advantages to third parties would not criminalize the public servants actions, so long as they have an element of public interest. They (acts of the public servant) are outlawed, and become punishable, if they are "without public interest."

.....................

"75. It would be profitable to emphasize the public servants are an entirely different class, and the level of trust reposed in them by the society is reflected in the high standards of behaviour and rectitute expected of them, both in the discharge of their duties, and otherwise. In the case of ministerswho are members of the council of Ministers (the Cabinet) in the Union and State 30 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Governments, as well as holders of other constitutional offices there is a requirement that before their appointment, each of them has to subscribe to an oath of office and secrecy according to the form set out in the Schedule, to the Constitution of India by which holders of such offices are required to take oath that he or she would discharge her or his duties in accordance with the Constitution and the law without fear or favour, affection or ill will. This requirement is a constant reminder to the holder of that office that she or he is a trustee and custodian of public interest,and all decisions taken in that capacity are to be based on that factor alone. Holders of other public offices, under the State (a compendious term) are equally bound by such a condition. To ensure that they are afforded the amulet protection and immunity, the Constitution has mandated some safeguards (in the case of members of a service or holders of office under a State or the Union, the protection from arbitrary loss of employment, under Article 311, and the protection of status accorded by virtue of rules or enactments made, pursuant to Article 309 of the Constitution of India). There is an added layer of immunity in the form of requirement of sanction under section 197 or other similar provisions, to protect public servants from needless harassment. However, when the public servant acts in a manner that is devoid of public interest, not only would the action become suspect, then, having regard to the nature of his action, and the heightened degree of blameworthiness, he is said to have transgressed the bounds of protection afforded to his decisions, and is then exposed to prosecution."

"77. The court, as a consequence has to determine the objective criteria by which acts (of public servants) without public interest, are to be judged, if mens rea (to obtain pecuniary advantage or valuable thing to another) is not a necessary ingredient. This exercise is essential because in the absence of mens rea (which has been ruled out) the court has to say what "acts" resulting in someone obtaining pecuniary advantage or valuable thing are "without public interest". Obviously the mere fact that a third party obtains pecuniary advantage, or a valuable thing, is insufficient; a supplier of equipment to public servants or offices, a travel agent who makes bookings for a public agency, a businessman or corporate group granted licenses or clearances, by departments or agencies of the Government, would all stand to benefit. Many of these decisions are infact, and all are, expected to be in public interest. Therefore, the kind of behaviour which amounts to an "act" resulting in someone "obtaining pecuniary advantage" or "valuable thing" without public interest" needs to be spelt out."

"81. As noticed previously, the silence in the statute, about the state of mind, rules out applicability of the mens rea or intent standard, (i.e. the prosecution does not have to prove that the accused intended the consequence, 31 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 which occurred or was likely to occur). Having regard to the existing law Section 13(1) (e) (which does not require proof of criminal intent) as well as the strict liability standards prevailing our system of law, therefore, a decision is said to be without public interest, (if the other requirements of the provision, i.e. Section 13(1)(d) (iii) are fulfilled) if that action of the public servant is the consequence of his or her manifest failure to observe those reasonable safeguards against detriment to the public interest, which having regard to all circumstances, it was his or her duty to have adopted."

"82. It would be useful to in this context, take recourse to certain examples. For instance, in not adopting any discernable criteria, in awarding supply contracts, based on advertisements calling for responses, published in newspapers having very little circulation, two days before the last date of submission of tenders, which result in a majority of suppliers being left out of the process, and the resultant award of permits to an unknown and untested supplier, would result in advantage to that individual, and also be without public interest, as the potential benefit from competitive bids would be eliminated. Likewise, tweaking tender criteria, to ensure that only a few applicants are eligible, and ensure that competition (to them) is severely curtailed, or eliminated altogether, thus stifling other lines of equipment supply, or banking on only one life saving drug supplier, who with know inefficient record, and who has a history of supplying substandard drugs, would be acts contrary to public interest. In all cases, it can be said that the public servant who took the decision, did so by manifestly failing to exercise reasonable proper care and precaution to guard against injury to public interest, which he was bound, at all times to do. The intention or desire to cause the consequence may or may not be present, indeed it is irrelevant, as long as the decision was taken, which could not be termed by any yardstick, a reasonable one, but based on a complete or disregard of the consequence, the act would be culpable."

Ld. Defence Counsels have referred to a prior judgment in J. Jayalalitha Vs State (MANU/TN/1423/2001) decided on 4.12.2001 and I reproduced the relevant portions of the same as under : "...........The contention of the prosecution that mere exercise of power to 32 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 confer pecuniary advantage to another person even without any dishonesty, can attract the penal provisions of the Prevention of Corruption Act, cannot be accepted, since if such a contention is accepted, any order passed by a public servant, which confers pecuniary advantage, can be prosecuted under the said Act. Section 13(1)(d) of the Prevention of Corruption Act, 1988 relates to the offence of criminal misconduct, whether it is under Clause (i) or (ii) or (iii) and therefore, the offence recognized under all the three clauses is only an offence of criminal misconduct. In my view, all clauses in Section 13(1)(d) of the Act require mens rea and it is an essential ingredient for the offence. The judgment of the Supreme Court in M. Narayanan Nambiar v. State of Kerala (AIR 1963 SC 116), which was quoted with approval by the Apex Court in Major S. K. Kale v. State of Maharashtra (MANU/SC/0139/1976 : (1977) 2 SCC 394), shows that in order to come within the mischief of the Section, the abuse of position must necessarily be dishonest on the part of the accused. If the words "corrupt, illegal means or abuse" are not read into Section 13(1)(d)(iii) of the said Act, innocent persons will be harassed in the course of performance of their official duties.

The judgments referred to above show that what is sought to be punished under Section 13(1)(d) of the Prevention of 33 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Corruption Act, 1988, is not mere misconduct but criminal misconduct and for criminal misconduct, the element of mens rea is essential and if there is no mens rea, the act does not by itself become punishable, except in certain cases, like Section 304A IPC as it provides punishment for rash and negligent act committed without mens rea.

I have already extracted Section 13(1)(d)(iii) of the Prevention of Crruption Act, 1988, and in that, the words, "without any public interest" (emphasis supplied) are found. The words, "without any public interest" used in the said Section show that for the offence under Section 13(1)(d)(iii), the prosecution must establish that the interest shown for obtaining pecuniary advantage or valuable thing, was private interest and even if the act serves one public interest and if the said one public interest is against another public interest, a person cannot be prosecuted, since the Section states emphatically that the act shall be done without any public interest. The word 'any' is therefore to be understood that there should be a zero public interest. The word 'any' is defined in Judicial Dictionary of words and Phrases (Fifth Edition by John S. James) as a word which excludes limitation or qualification. Therefore, the word 'any' used Section 13(1)(d)(iii) is absolute. The trial Judge has also conceded in his judgment that tourism involves public interest, but went on to hold that it cannot override another public 34 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 interest, i.e. Ecological system. Therefore, it is not a case where we can fit in the words "without any public interest", To make out an offence of criminal misconduct, two requirements are necessary and they are, (1) the absence of any public interest whatsoever, and (2) the knowledge of the accused that his act is without any public interest. The first requirement is the objective absence, as a fact, of any public interest and the second requirement flows from the legal maxim regarding mens rea.

If the accused acted bona fide without any public interest, believing that he is acting in the public interest, he is not guilty of the offence of criminal misconduct."

It is argued by Ld. Public Prosecutor that careful perusal of Jayalalitha's judgment would show that this judgment is not contrary to the dicta of our own High Court in Runu Ghosh case, rather it supplements the same. The purport of this judgment of Hon'ble High Court is that the element of "mens rea" is applicable to Section 13(1)

(d)(iii) of Prevention of Corruption Act only to the extent that the public servant should also have the knowledge that his act is without any public interest. The same view is expressed by Hon'ble High Court in 'Runu Ghosh' case but in different words. In 'Runu Ghosh' in para 79, Hon'ble High Court has observed that "however it is only those 35 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 facts done with complete and manifest disregard to the norms, and manifestly injurious to public interest which were avoidable, but for the public servant overlooking or disregarding precautions and not heeding the safeguards he or she was accepted and which resulted in pecuniary advantage to another..........". To put it in different words, the judgment means that the if the public servant knew that his act of over looking or disregarding the precautions would be injurious to public interest, he would be covered under the mischief of Section 13(1)(d)(iii) of Prevention of Corruption Act 1988. Delhi High Court in Runu Ghosh also noted that the knowledge of the injury to public interest, however, has to be deduced from the note sheets because normally no other evidence would be available against such public servants. Ld. Public Prosecutor submits that the conjoint reading of both the judgments would lead to the conclusion that when an issue affecting public interest comes before a public servant, it is natural that such public person would know that any disregard of the norms would harm the public interest. This knowledge of public interest has to be gathered from the facts of the case. For example in the present case allotment of land/plot to the society would be an act in public interest but if land is granted to a fake society, it would be injurious to the public interest. Needless to say that land is extremely expensive in NCT of Delhi.

CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 To counter these arguments of Ld. Public Prosecutor, Sh. R.P. Shukla, Adv. for accused Rakesh Kumar Sharma and Dr. Sushil Kumar Gupta, Adv. for accused Naryan Diwakar have referred to C.K. Jaffer Sharief Vs State (Through CBI), (2013) 1 Supreme Court Cases 205. My attention has been drawn to para 17 & 18 of the judgment which I reproduce as under:

17. "It has already been noticed that the appellant besides working as the Minister of Railways was the head of the two public sector undertakings in question at the relevant time. It also appears from the materials on record that the four persons while in London had assisted the appellant in performing certain tasks connected with the discharge of duties as a Minister. It is difficult to visualise as to how int he light of the above facts, demonstrated by the materials revealed in the course of investigation, the appellant can be construed to have adopted corrupt or illegal means or to have abused his position as a public servant to obtain any valuable thing or pecuniary advantage either for himself or for any of the aforesaid four persons. If the statements of the witnesses examined under Section 161 CrPC show that the aforesaid four persons had performed certain tasks to assist the Minister in the discharge of his public duties, however insignificant such tasks may have been, no question of obtaining any pecuniary advantage by any corrupt or illegal means or by abuse of the position of the appellant as a public servant can arise. As a Minister it was for the appellant to decide on the number and identity of the officials and supporting staff who should accompany him to London if it was anticipated that he would be required to perform his official duties while in London. If in the process, the rules or norms applicable were violated or the decision taken shows an extravagant display of redundance it is the conduct and action of the appellant which may have been improper or contrary to the departmental norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. That dishonest intention is the gist of the offence under Section 13(1)(d) is implicit in the words used i.e. corrupt or illegal means and abuse of position 37 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 as a public servant. A similar view has also been expressed by this Court in M.Naryananan Nambiar v. State of Kerala while considering the provisions of Section 5 of the 1947 Act.

18. If the totality of the materials on record indicates the above position, we do not find any reason to allow the prosecution to continue against the appellant. Such continuance, in our view, would be an abuse of process of court and therefore it will be the plain duty of the Court to interdict the same."

Ld. Public Prosecutor submits that the perusal of the aforesaid judgment would show that the requirement of the ingredient of dishonest intention has been referred to by the Hon'ble Supreme Court only as an ingredient to Section 13(1)(d) SubClause (i) & (ii). It is submitted that the ingredients of Section 13(1)(d)(iii) of P.C. Act, 1988 are altogether different and do not require mens rea and it stands at the footing of Section 13(e) where also no mens rea is required.

On the other hand, Ld. Defence Counsel submits that the verdict of the Supreme Court in C.K. Jafer Sharief is in respect of all the clauses of Section 13(1)(d) and is not limited to 13(1)(d) (i) &

(ii). Rather, it includes 13(1)(d)(iii) of P. C. Act 1988 also. Ld. Defence Counsel has drawn my attention that as per this judgment, the Supreme Court has clearly held that even if there is any impropriety and violation of departmental norms, still the prosecution must show that such an act was actuated by "dishonest intention".

I have considered the rival submissions. The submissions of 38 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Ld. Public Prosecutor are very substantial. However, the court has an option to choose between a "better" interpretation of the judgment and a "safer" interpretation of the judgment. Though, the arguments of Ld. Public Prosecutor do appeal to me, but, I would like to take a safer course by accepting the interpretation of the aforesaid Supreme Court judgment, as given by Ld. Defence Counsels.

Another question, which was at centre of discussion was "pecuniary advantages." There cannot be any scope of any disagreement on the point as raised by Ld. Defence Counsels that "obtaining pecuniary advantage for himself or any other persons" is the main ingredient of Section 13(1) (d) on Prevention of Corruption Act 1988. It is also true that prosecution has been unable to prove any evidence to show that if any public servant had obtained any pecuniary advantage for himself or for any other person. But it must be kept in mind that the charge against the public servants in this case is under Section 15 read with Section 13(1)(d) of Prevention of Corruption Act i.e. an attempt to obtain the pecuniary advantage for himself or for some other person. Since it is an offence of "attempt" only, therefore there is no question of these public servants having actually obtained any pecuniary advantage to themselves or to the persons operating the fake society.

CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Effect of approval of list of members by RCS The importance of this issue has been specified by Hon'ble High Court of Delhi in Kaveri judgment and I reproduce the relevant portion of the same as under: "It is open to the Registrar to fix a time limit within which the defects, if any, must be removed by the society so as to enable the Registrar to grant approval. If the defects are not removed within the stipulated time, then the society can have no grievance if the approval is not accorded. But once the approval is accorded the same must relate back to the date of the filing of the list. What is the effect of approval? The effect of approval is that the Registrar recognises the correctness of the list as filed by the society."

Notings on the file In the 'Runu Ghosh case', it has also been decided that since the offences of corruption are done under the cloak of official duties and in a very clever and shrouded manner, the only evidence available is note sheets written or approved by public servants and the court would be fully justified to draw appropriate inferences from such note sheets. This court has to carefully peruse the note sheets to consider as to whether there has been any abuse of powers, as per Section 13(1)(d)(ii) or whether the public servant has acted without any 40 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 public interest to obtain pecuniary advantage to any person, bringing the case under Clause (iii) of Section 13(1)(d) of Prevention of Corruption Act 1988. I may add here that this court would also be justified to find out from the notings as to whether the RCS officials had dishonest intention while processing the case of the society in question.

Requirement of sanction u/s 197 CrPC u/s 19 of P.C. Act, 1988 It is argued by Ld. Defence Counsels that there is no sanction under Section 197 CrPC to prosecute accused persons though sanction under Section 19 of P. C. Act has been accorded. I may point out that since accused Narayan Diwakar had retired, there was no requirement for obtaining sanction under Section 19 of P. C. Act. Ld. Defence Counsels argue that for a prosecution under IPC, a sanction under Section 197 CrPC is required, irrespective of the fact as to whether the public servant is still serving or has retired. I have considered the submissions of the accused persons. All the accused persons have argued that since there is no sanction under Section 197 CrPC, therefore they cannot be convicted under any IPC offence including under Section 120B IPC. R. Balakrishna Pillai Vs State of Kerala and another AIR 1996 SUPREME COURT 901 has been referred to. Therefore I would like to reproduce relevant paragraphs of this judgment as under :

CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 "6. The next question is whether the offence alleged against the appellant can be said to have been committed by him while acting or purporting to act in the discharge of his official duty. It was contended by the learned counsel for the State that the charge of conspiracy would not attract Section 197 of the Code for the simple reason that it is no part of the duty of a Minister while discharging his official duties to enter into a Criminal conspiracy. In support of his contention he placed strong reliance on the decision of this Court in Harihar Prasad v State of Bihar, 1972 CriLJ 707:(1972)8 SCC 89. He drew our attention to the observations in paragraph 74 of the judgment where the Court, while considering the question whether the acts complained of were directly concerned with the official duties of the concerned public servants, observed that it was no duty of a public servant to enter into a criminal conspiracy and hence want of sanction under Section 197 of the Code was no bar to the prosecution. The question whether the acts complained of had a direct nexus or relation with the discharge of official duties by the concerned public servant would depend on the facts of each case.

There can be no general proposition that whenever there is a charge of criminal conspiracy levelled against a public servant in or out office the bar of Section 197(1) of the Code would have no application. Such a view would render Section 197(1) of the Code specious. Therefore, the question would have to be examined in the facts of each case. The observations were made by the Court in the special facts of that case which clearly indicated that the criminal conspiracy entered into by the three delinquent public servants had no relation whatsoever with their official duties and, therefore, the bar of Section 197(1) was not attracted. It must also be remembered that the said decision was rendered keeping in view Section 197 (1), as it then stood, but we do not base our 42 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 decision on that distinction. Our attention was next invited to a threeJudge decision in S. B. Saha v. M. S. Kochar, (1979) 4 SCC 177 : (AIR 1979 SC 1841). The relevant observations relied upon are to be found in paragraph 17 of the judgment. It is pointed out that the words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty employed Section 197 (1) of the Code, are capable of both a narrow and a wide interpretation but their Lordships pointed out that if they were construed too narrowly, the section will be rendered altogether sterile, for, it is no part of an official duty to commit and offence, and never can be. At the same time, if they were too widely construed, they will take under their umbrella every act constituting an offence committed in the course of the same transaction in which the official duty is performed or is purported to be performed. The night approach, it was pointed out, was to see that the meaning of this expression lies between these two extremes. While on the hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection. Only an act constituting an offence directly or reasonably connected with his official duty will require sanction for prosecution. To put it briefly, it is the quality of the act that is important and if it falls within the scope of the aforequoted words, the protection of Section 197 will have to be extended to the concerned public servant. This decision, therefore, points out what approach the Court should adopt while construing Section 197(1) of the Code and its application to the facts of the case on hand.

7. In the present case, the appellant is charged with having entered into a criminal conspiracy with the coaccused while functioning as a Minister. The Criminal conspiracy alleged is that he sold electricity to an industry in the State of Karnataka 'without the 43 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 consent of the Government of Kerala which is an illegal act' under the provision of the electricity (Supply) Act, 1948 and the Kerala Electricity Board Rules framed thereunder. The allegations is that he in pursuance of the said alleged conspiracy abused his official position and illegally sold certain units to the private industry in Bangalore (Karnataka) which profited the private industry to the tune of Rs. 19,58,630.40 or more and it is, therefore, obvious that the criminal conspiracy alleged against the appellant is that while functioning as the Minister for Electricity he without the consent of the Government of Kerala supplied certain units of electricity to a private industry in Karnataka. Obviously, he did this in the discharge of his duties as a Minister. The allegations is that it was an illegal act in as much as the consent of the Government of Kerala was not obtained before this arrangement was entered into and the supply was effected. For that reason, it is said that he had committed an illegality and hence he was liable to be punished for criminal conspiracy under Section 120B I.P.C. It is, therefore, clear from the charge that the act alleged is directly and reasonably connected with his official duty as a Minister and would, therefore, attract the protection of Section 197(1) of the Act.

8. For the above reasons, we are unable to accept the view taken by the High Court of Kerala insofar as the requirement of sanction under Section 197(1) of the Code is concerned, in relation to the charge of criminal conspiracy. We, therefore, allow this appeal, set aside the decision of the High Court insofar as that charge is concerned and hold that sanction under Section 197(1) of the Code was a sine qua non. As pointed out earlier so far as the second charge under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act is concerned, the view of the High Court remains undisturbed. The appeal is allowed accordingly and will stand so disposed of."

CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 A perusal of this case would show that Supreme Court of India has relied upon the criteria, which had already been stated repeatedly by Supreme Court. This criteria is that while deciding the question of applicability of Section 197(1) CrPC, neither this provision can be interpreted too widely nor too narrowly and a balance has to be maintained by the court because if this provision is construed too narrowly, the section will be rendered altogether sterile, for it is no part of an official duty to commit an offence and never can be. At the same time, if they were too widely construed, they will take under their umbrella every act constituting an offence committed in course of the same transaction in which the official duty is performed. The Apex Court held that right approach is to see that the meaning of the expression lies between two extremes. Therefore the court will have to assess the facts and to take a decision as to whether the conspiracy charge is so intertwined with the discharge of the official duty that a sanction under Section 197 would be required, or, the official duty is discharged in such a fashion that the public servant becomes active actor or stimulator of the conspiracy in question. In later case, the sanction under Section 197 CrPC would not be required. Therefore the aforesaid authorities can not be applied mechanically for or against the public servant.

In 'Dharambir Khattar Vs. CBI decided on 5.5.2009 in 45 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Criminal Revision Petition No. 340 of 2008, by the High Court of Delhi, it was observed that:

"There is a merit in the contention of the learned counsel for the CBI that sanction under Section 197 CrPC is actually not required when the often committed are under the PCA. It is submitted that a criminal conspiracy to commit an offence under the PCA cannot be cloaked with any immunity to indulge in criminal misconduct. Want of sanction under Section 197 of Code of Criminal Procedure is, therefore, no bar. The matter can be looked at from another angle as well. The petitioners have been charged with the offence of criminal conspiracy under Section 120B IPC. Under Section 3 of PCA, the Special Judge is empowered to try not only "any offence punishable under this Code" but under Section 3(1)

(d) "any conspiracy to commit or attempt to commit or any abetment of the offences specified in clause (I).

Under Section 40 IPC, it has been mentioned that in Chapter VA and in Sections 109, 110 IPC the word "offence" denotes a thing punishable under this Code, or under any special or local law as hereinafter defined." Under Section 41 IPC, a special law has been defined as "a law applicable to a particular subject." Therefore, in terms of Section 40 and 41 IPC, the PCA would be a Special Law. The offence under Section 120B in Chapter VA IPC would therefore also become punishable under the PCA which is a special enactment for that purpose. Once the sanction under Section 19 PCA has been obtained, there is no need to obtain a separate sanction under Section 197 CrPC for prosecuting the petitioners for the offence under Section 120B IPC."

Thus, the Delhi High Court in its above quoted order has categorically observed the offence under Section 120B IPC in chapter 46 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 VA IPC would also become punishable under the Prevention of Corruption Act and hence once sanction under Section 19 of Prevention of Corruption Act has been obtained, no sanction under Section 197 CrPC would be required.

Similar is the law settled in 'Kaushal Kumar Vs. CBI, 2009 (1) LRC 56, Delhi.

The aforesaid legal proposition has been reiterated by Hon'ble Mr. Justice M. L. Mehta in C. K. Jaffer Sharief Vs. State (Through CBI) 2012 IV AD (DELHI) 214, wherein it was held that if there is a sanction under Section 19 of P. C. Act, the absence of sanction under Section 197 CrPC would not come to the rescue of an accused even if the public servant has been charged for IPC offences. Supreme Court of India, though quashed the prosecution of C.K. Jaffer Sharief (vide its judgment dt.09.11.2012 in Crl. Appeal No. 1804/2012), but, did not disturb the view of Delhi High Court on the point of sanction.

Hence, those accused persons against whom sanction u/s 19 of P.C. Act have been obtained, cannot claim any benefit on the ground that there is no sanction under Section 197 CrPC.

But where there was no requirement of obtaining sanction u/s 19 of PC Act due to retirement of public servants, as is the case with Narayan Diwakar, it is to be seen as to whether the prosecution is able to prove its charge against them under Section 120B IPC. Then it 47 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 would be seen as to whether the act of Narayan Diwakar goes beyond his official functions. However, this aspect would be discussed in later part of the judgment.

Powers of police to take handwriting sample during investigation and evidentiary value of the opinion of handwriting expert Ld. Defence Counsels have referred to Sapan Haldar & Anr. Vs. State 191(2012) Delhi Law Times 225 of High Court of Delhi decided on 25.5.2012 and submit that the Investigating Officer had no power to take/ specimen signatures. On the other hand, Ld. Public Prosecutor has referred to Ravinder Kumar @ Dara Singh Vs Republic of India AIR 2011 SC 1436 in which Supreme Court of India held that Investigating Officer had power to take specimen signatures during investigation.

I have considered the rival contentions. The Supreme Court of India, in State of Bombay V. Kathi Kalu Oghad & Ors. AIR 1961 Supreme Court 1808, considered this issue in detail and held that police does not require the permission of the Magistrate before taking the specimen hand writing of an accused during investigation. Relying upon the ratio of Kathi Kalu case, Supreme Court of India in Ravinder Kumar Pal @ Dara Singh Vs. Republic of India AIR 2011 SC 1436, where a question was raised about the admissibility of the specimen signatures of the accused taken during investigation by police without 48 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 permission of the Magistrate, has held that taking of specimen signatures/writings of accused for examination by expert during investigation, without permission of the Magistrate, is proper and report of expert based on such signatures/writings can be used as evidence against the accused. In this judgment, the Supreme Court had also noticed a recent amendment of 2006 (i.e. Section 311A IPC). Relevant portion of para no. 35 of this judgment contain the rival submission put before it, which is reproduced as under :

"Another question which we have to consider is whether the Police (CBI) had the power under the CrPC to take specimen signature and writing of A3 for examination by the expert. It was pointed out that during investigation, even the Magistrate cannot direct the accused to give his specimen signature on the asking of the police and only in the amendment of the CrPC in 2005, power has been given to the Magistrate to direct any person including the accused to give his specimen signature for the purpose of investigation. Hence, it was pointed out that taking of his signature/writings being per se illegal the report of the expert cannot be used as evidence against him. To meet the above claim, learned Addl. Solicitor General heavily relied on a 11Judge Bench decision of this court in the State of Bombay V. Kathi Kalu Oghad and Ors. (1962) 3 SCR 10:

AIR 1961 SC 1808. This larger Bench was 49 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 constituted in order to reexamine some of the propositions of law laid down by this Court in the case of M. P. Sharma & Ors. Vs. Satish Chandra, District Magistrate, Delhi and Ors., (1954) SCR 1077: (AIR 1954 SC 300)."

The Supreme Court of India then upheld the view of Orissa High Court which had held that police had power to take specimen signatures of accused during investigation. Thus, I find no illegality in taking of specimen signatures of the accused persons by the CBI during investigation.

Evidentiary value of the opinion of hand writing expert It is submitted by Sh. Yogesh Verma, Adv. for accused P.N. Sharma that convicting an accused on the opinion of hand writing expert would be a highly dangerous proposition. Ld. Defence Counsel has referred Magan Bihari Lal Vs State of Punjab, AIR 1977 SC 1091 in his support. Ld. Defence Counsel has drawn my attention to the facts of the said judgment, wherein the sole evidence against the accused was the opinion of handwriting expert. It was held that it would be extremely hazardous to condemn the accused merely on the strength of opinion evidence of a handwriting expert without substantial corroboration.

I have considered the case law cited by Ld. Defence Counsel.

CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Section 45 of the Indian Evidence Act lay down that when the court has to form an opinion as to the identity of hand writing or finger impressions, the opinions upon that point of the persons expert in that science are relevant facts. If the two hand writings match with each other, this itself is an evidence as per the Indian Evidence act. To say it differently, the matching of two hand writings is itself a substantial evidence u/s 45 of Indian Evidence Act and the opinion of the hand writing expert is sought only to facilitate the court to form an opinion on this point. The appropriate interpretation of Section 45 of Indian Evidence Act is that court is competent to form its own opinion on the point of identity of hand writing and for that purpose the court may call for the report of a hand writing expert. Therefore, the relevant fact before this court is the matching or non matching of the hand writing of an accused with the questioned hand writing. If the hand writings match, there cannot be any hitch in convicting the accused even if further corroborative evidence is not available. I quote from the judgment dated 5.7.2011 passed by the division Bench of Hon'ble Mr. Justice S. Ravindra Bhatt and Hon'ble Mr. Justice G. P. Mittal in Jaipal Vs State Criminal appeal No. 137/98 and Rajendra Vs State Criminal Appeal No. 181/98 as under :

"it is true that except the handwriting Expert's report Ext.PW4/A there is no corroboration that the ransom letter Ext.PW12/A was in the handwriting of Appellant 51 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Jaipal. The question was dealt in detail by the Supreme Court in Murari Lal v. State of M. P., AIR 1980 SC 531. The Court observed that handwriting expert is not an accomplice and there is no justification for condemning his opinion evidence. It was held that if the Court is convinced from the report of an expert that the questioned handwriting was of the accused, there is no difficulty in relying upon the expert's opinion without any corroboration."

It is pertinent to note that High Court of Delhi had relied upon Murari Lal v. State of M.P., AIR 1980 SC 531 wherein Hon'ble Supreme Court held that there was no rule of law nor any rule of prudence that the evidence of handwriting expert must not be acted upon, unless substantially corroborated. In this judgement Hon'ble Supreme Court analyzed various judgements on this issue including "Magan Bihari Lal" cited by Ld. Defence Counsel. Hon'ble Supreme Court specifically noted that the observations in "Magan Bihari Lal"

do not lay down any legal principle. I would like to quote from this judgment extensively as under:

"An expert is no accomplice. There is no justification for condemning his opinionevidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion on a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnessthe quality of credibility or 52 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 incredibility being one which an expert shares with all other witness, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of fingerprints has attained near perfection and the risk of an incorrect opinion is practically nonexistent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. An expert deposes and not decides. His duty is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence. (para 4) Expert testimony is made relevant by S.45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person 'specially skilled' in questions as to identity of handwriting is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like illustration (b) to S. 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the Court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. The Evidence Act itself (S.3) tells that 'A fact is said to be provided when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.' Further, under S. 144 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that S. 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinions of experts, when 53 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 such opinions are relevant.

(Para 6) There is no rule of law, nor any rule of prudence which has crystalised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence through a doubt, the uncorroborated testimony of a handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. (Cases law discussed).

(Para 11) Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative text book and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence.

(Para 12) In view of the above stated law, I am of the opinion that when a case is being pressed by the prosecution solely on the basis of 54 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 handwriting expert, the court should be very cautious and the reasons for the expert opinion must be carefully examined. In case where reasons for opinion are convincing and there is no reliable evidence throwing a doubt upon it, the testimony of handwriting expert may be accepted.

Relevant note sheets of the file D2 VolumeIV.

This file has been proved as Ex.PW43/X and was maintained in the office of RCS. It contains the relevant notings. In order to understand the role of A1, A2 and A3, it is necessary to peruse these notings so as to know as to whether any inference of abuse of powers/dishonest intention can be drawn.

10/N Vide PUC the Secretary of the society has requested for the revival of National Building Organization Emp. Coop. G/H Society Ltd.

The brief facts of the case is that the above name society was registered at SI No. 71 (H) on 25.07.1971 as per registration certificate at Flat A with 20 promoted members of the society. Clause 5 of the Byelaws of the society provides that the membership is restricted to the National Building Organization. Since the society could not get land because the freeze strength of the membership was not at par as the per DDA limitation i.e. 50 members. Hence the society had made amendment on 16.10.79 by opening its membership for all classes/castes and creed and raised its freeze strength of members to 144 members. There is a audit report available on the record for the period 1.7.1972 to 30.6.1973 in which the membership of the society has been reflected as 49 members with total share capital of Rs. 4900/. The list of 49 members is also available at flat 'B'.

The Inspector Housing in his report dated 26.3.1972 has also reported that the land has not been allotted to the society by then. On the basis of the 55 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 report of the Inspector dated 07.12.79, the society was placed under liquidation dated 14.2.1979 and one Shri J.R. Verma Inspector was appointed liquidator of the society under U/s 66 of the DCS Act, 1972.

It has now been decided by the society the order passed on 12.2.79 had challenged by them repeatedly but there is nothing such on the record.

The Managing committee of the society in its Extra Ordinary Meeting has resolved to approach Registrar Coop. Societies for the revival of the society. It has also been reported that the total strength of the society is 144 members inclusive of 13 members (Promoter). A copy of the AGM meeting has also been furnished. The society in its other General Body Meeting held on 20.2.2003 has also resolved to change the name of the society to KEVALYA VIHAR Coop. Society Ltd. as per the copy of the resolution in amendment in Byelaws.

Section 63(3) of the DCS Act, 1972 provides as under: "The Registrar may cancel an order for the winding up of a cooperative society, at any time, in any case where, in his opinion, the society should continue to exist."

Submitted for further course of action.

Dealing Clerk 6/3/03 AR (SW) 06/3/2003 Reader to RCS (I may point out that there is some clerical mistake of dates in the aforesaid noting. The society amended its byelaws on 16.1.1979 and not on 16.10.1979. The report of inspector is dated 7.2.1979 and not 7.12.1979.) 11/N The proposal for the revival of the National Building Organising Coop. Group Housing Society Ltd. (71 GH) has been forwarded by A. R (S/W). The society was liquidated 56 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 vide order dated 141279. The society has resolved its regd. add. in the General Body Meeting held on 251202.

If approved, he may issue summon to the President/Secy. Of the N B O CGHS Ltd.

u/s 63 of DCS Act, 1972 to appear in the court alongwith all relevant records pertains to the revival of the society on 11032003.

Submitted Pl RCS N. Diwakar 7/3/03 Rdr (In this note also there is mistake in date. The society was liquidated vide order dated 14.2.1979 and not on 14.12.1979).

11.3.2002 Sh. R. P. Sharma, Secy. Of the society present.

Reader is directed to send the file to concerned zone for verification.

Proceedings adjourned for 18.3.2003.


                                                                     (N.DIWAKAR)
                                                                                 R.C.S.
AR(SW)    for n/a. pl.             
                                                                      192/Reader
                                                                            12/3/03
D/A                                         
      12/3

(The date 11.3.2002 should be read as 11.3.2003).

12/N 18032003 57 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Sh. R.P. Sharma, Secretary of the Society present and requested for adjournment for one day as the verification is in progress in the zone.

In view of the above, proceedings adjourned for 2032003.

(N.DIWAKAR) R.C.S. AR(S/W) D/A 13/N 14/N Reference direction of the R.C.S. Dated 11.3.2002.

Sh. R.P. Sharma, President of the society appeared alongwith the original record which has been verified with reference to the documents furnished and the report is as under :

The society was registered at Sl. No.71(H) on 25.7.1971 as per Registration Certificate at Flat A with 20 promoter members. The clause 5 of the registered byelaws of the society provides that the membership is restricted to the staff of the National Building Organisation, New Delhi. Since the society could not get land because the freeze strength of the society was not as per the requirement of the DDA i.e. 50 members, the Society in its 4th annual General Body Meeting held on 1.12.1976 resolved to adopt the model byelaws of the societies and further in its General Body Meeting held on 16.1.1979 the society resolved that the membership of the Society be opened to all applicants irrespective of their caste, creed, area and religion (P14/C) and raised its strength of members to 114 which has inadvertently be stated as 144 earlier. In this connection the clarification as submitted by the society is placed at page7/C. The society was brought under liquidation vide order dated 14.2.1979 and one Sh. J.R. Verma and was appointed as liquidator of the society who has not submitted any report till date as per record. Now, in an extraordinary General Body Meeting held on 25.12.2002 with 2/3 majority resolved to request this office for the revival of the society. A copy of the proceeding of the A.G.M. held on 25.12.2002 has been furnished and may be seen at page16/C. 58 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Resignation The following resignation have taken place as per details given here under :

Sl.  Name of members                                    Date   of  Date   of  Date   of 
No.                                                     application  M.C.     refund 
                                                        for          Approval of   share 
                                                        resignation           money
 1                                      2                    3                      4                  5
1      Shri Teja Singh                                  3.2.75             5.2.75                5.2.75
..... ...............................
14 Shri A. G. Donge                                     6.2.75             11.2.75               11.2.75
Dealing Clerk
Q1043                                       Q1043

                                              15/N


15 Shri G. Dwarika Nath                                 6.2.75             11.2.75               11.2.75
..... ...............................
56 Shri Bhagat Singh Sodhi                              5.2.79             10.2.79               10.2.79

A copy of the resignation leter, M.C. resolution and Proof of refund available with the society has been furnished which is available in Vol.I. It may not be out of place to mention here that a few members of the society have received their respective refund by appending their signatures mentioned the receipts in the membership register itself. A copy of the membership Register has also been obtained and placed in Vol.II. It has been declared on oath by the President of the society that refund to all the resigned members have since been made and there is no dispute of membership (P17/C).

Dealing Clerk 59 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 16/N The following enrolments have taken place as per details given here under :

Sl. Name of the member Date of MC Date of payment No. resolution of S/M and adm.

fee 1 2 3 4 1 Shri Ram Dass 20.1.79 25.1.79 ..... ...............................

46 Shri Brijmohan 20.1.79 25.1.79 Dealing Clerk 17/N 47 Shri Murari Lal 20.1.79 25.1.79 ..... ...............................

105 Shri Kaptan Singh 5.2.79 5.2.79 18/N 106 Shri R. S. Aggarwal 5.2.79 5.2.79 ..... ...............................

114 Shri Kumud Sharma 5.2.79 5.2.79 A copy each of the application from, M.C. resolution, receipt of Share Money has been furnished and available in Vo.II which has been checked with reference to the original record produced. The requisite affidavit signed by the President/Secretary of the society has been furnished and is available at page 37/C. The President/Secretary of the society have submitted the declaration on oath 60 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 to abide by the statutory obligation cost upon them by the Delhi Coop. Societies Act & Rules framed thereunder (P18/C).

The President of the society on oath has declared that (P17/C) the last election to M.C. was held on 10.2.79 and the last audit is completed upto 30.6.1973. However, the society has approached the audit branch for the completion of the pending audit vide copy of the appointment of C.A. From No. It may also be mentioned here that in its extraordinary General Body Meeting held on 20.2.2003 the name of the society has since been changed from National Building Organisation Employees Coop. Group Housing Society Ltd. to Kavalay Vihar Coop. Group Housing Society Ltd. and has requested this office for making amendment in the byelaws of the society as per copy of the proceedings and certificate to this effect available at page 20/C. The society has submitted 04 copies of the existing 114 members for approval and onward transmission to the DDA for allotment of land.

Sl.         Mem                  Name of Members
No          Ship
      1                 57       Shri Ram Das
........... ..................
   22                   78       Shri Desh Raj

Dealing Clerk


                                                 19/N


   23                   79       Shri Braham Singh
........... ..................
   80                  136       Shri Namdhari Singh

Dealing Clerk
                                                61

CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 20/N 81 137 Shri Keshav Gupta ........... ..................

114 170 Shri Kumud Sharma Submitted for perusal and further direction for R.C.S. Dealing Clerk 203--3 AR(SW) May kindly see the office note from page 14/N to 20/N. The freeze strength of the society is 114 and all the documents are checked & verified.

May kindly see for orders pl.

J. S. Sharma Reader to RCS 10.3.2003 (In the start of this note, there is reference of direction of RCS dated 11.3.2002. This date should be read as 11.3.2003).

21/N 20.3.2002 Sh. R.P. Sharma, President of the society present. It has been found that the verification has been completed. From the concerned zone.

The case is reserved for orders.

Ex PW43/X7 (N.DIWAKAR) 62 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 R.C.S. (The above noted dated 20.3.2002 should be read as 20.3.2003).

File returned after issue of orders despatch no. 2716 to 22 for revival of N. B. O. Empl. CGHS.

26.3.03 AR/(SW) 26/3 D/A Reference orders of R.C.S. Dated 26.3.2003.

Accordingly, draft/fair letters are placed opposite for approval/signatures please.


Dealing Clerk 
27/3/03                                                              AR(SW)

                                                                     27/3/2003
                                                    Issue.
                                                    Pl. discuss
                                                    D/A

             Spoken.  The R.C.S. has approved the
change of the name of the Society
as Kevalya Vihar Coop. G/H Society Ltd.
vide order at page 42/C.  Accordingly,
the necessary amendment has been made.
Dealing Clerk Q1051
31/3/03
                                                                     AR(SW)


                                                                           31.3.2003
                                      D/A
                                             63

CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 PREM NARAIN SHARMA (A6) I will deal with his submissions under following heads :

(1) Is Harpreet Singh Khurmi (PW29) is the real offender and has been saved by the Investigating Officer as stated by A6 in his statement under Section 313 CrPC.

Ld. Defence Counsels have argued that Harpreet Singh Khurmi was the actual offender. It is argued that all the documents of the society were seized by CBI from him and he was also named in the FIR. My attention has been drawn to the cross examination of the Investigating Officer (PW59).

Ld. Defence Counsel submits that this cross examination clearly proves that investigating officer has tried to save Harpreet Singh Khurmi. It is submitted that in the cross examination, the investigating officer has admitted that Harpreet Singh Khurmi, Subhash Dabas, Vikas Chaudhary and Smt. Parminder Kaur had become the members of this society in MarchApril, 2003 till 2005. Investigating Officer also admitted that the proceedings have been written by the managing committee comprising Subhash Dabas, Vikas Chaudhary and Parminder Kaur in pursuance to the revival order dt. 26.03.2003 passed by Narayan Diwakar. It is argued that accused P.N. Sharma was implicated by the investigating officer at the instance of Harpreet Singh Khurmi. My attention in this regard has been drawn to the statement u/s 313 CrPC of accused P.N. Sharma. In response to 64 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 question no. 239, Prem Narayan Sharma has stated that the investigating officer was pressurizing him to accept that he had committed all the forgeries. Harpreet Singh Khurmi was also present there in front of the investigating officer and him. Investigating Officer suggested to Harpreet Singh Khurmi that if he found someone whose name is Ram Prakash Sharma or R.P. Sharma, then, he (Harpreet Singh Khurmi) might get rid of this case. Then, Harpreet Singh Khurmi suggested the investigating officer to show P.N. Sharma as Ram Prakash Sharma or R.P. Sharma. In this statement, A6 further states that the manner in which Harpreet Singh Khurmi was talking to the investigating officer boldly and fearlessly shows that he had colluded with the investigating officer and the investigating officer had saved Harpreet Singh Khurmi and at his instance falsely implicated him i.e. A6. It is argued by Ld. Defence Counsel that enough evidence is on record to show that Harpreet Singh Khurmi was a builder who would have got the maximum benefit in case the land being alloted to the society.

On the other hand, sh. Amrit Pal Singh, Ld. Public Prosecutor submits that Harpreet Singh Khurmi was in possession of the records of the society and admits that Khurmi would have been the beneficiary had land been alloted. However, Ld. PP submits that there was no evidence that Harpreet Singh Khurmi had interacted with the 65 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 RCS officials or the DDA officials so as to show any act, which amounts to be an attempt to commit crime on his part.

I have considered the rival submissions. The first part of the submission is as to whether Harpreet Singh Khurmi is the real conspirator.

It is not in dispute that the documents of the society were seized from him. It shows that on or around the said time, Harpreet Singh Khurmi had obtained those documents. It is also not in dispute that he enrolled Subhash Dabas, Vikas Chaudhary and Smt. Parminder Kaur, as members of this society and has also shown them as office bearers of the society in the proceedings of the meetings of the society. However, there is no evidence that he wrote any letter to RCS or to DDA for allotment of land. There is no evidence that he did any overt or covert act after getting the documents in the direction of allotment of land. Therefore, the only evidence against him is that he acquired the documents from R.P. Sharma and made his friends and family members in the society. Therefore, the act on his part is only at the stage of preparation. One step further was required to bring him within the ambit of "attempt". As regards the question of conspiracy, no evidence is coming except his own statement that he received the documents from R.P. Sharma. Therefore, I agree with Ld. Public Prosecutor legally and factually the evidence was not enough to 66 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 implicate him as an accused and that is why he was cited as a prosecution witness.

The second part of defence arguments is that at the instance of Harpreet Singh Khurmi, the investigating officer had falsely implicated P.N. Sharma. A specific reference to this has been made by accused in his statement u/s 313 CrPC mentioned above. However, surprisingly this accused did not put to Harpreet Singh Khurmi (Pw29) that Harpreet Singh Khurmi had suggested the investigating officer to implicate P.N. Sharma by showing him as R.P. Sharma. A bald suggestion that he was putting the whole blame on P.N. Sharma to save himself would not be suffice. It is further interesting to note that when the investigating officer (PW59)was examined, the accused P.N. Sharma also did not put to him the incident which, as per him, happened in the CBI office wherein Harpreet Singh Khurmi asked the investigating officer to show P.N. Sharma as R.P. Sharma. Interestingly, when P.N. Sharma examined himself as A6/DW1, he did not whisper anything about it in his evidence. Therefore, the plea of accused P.N. Sharma that he was falsely implicated in this case at the instance of Harpreet Singh Khurmi deserves outright rejection. (2) The admitted hand writings/signatures.

The Investigating Officer had collected the record of the leave applications from the office of National Building Organization, 67 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 where accused used to work as Junior Economic Investigator. This seizure memo has been proved by PW56 S. P. Singh, Assistant O/o Director National Building Organization, Ministry Urban Employment Poverty Alleviation, G Wing, Nirman Bhawan, New Delhi, vide which S. P. Singh had handed over eleven applications written by P. N. Sharma from 25.5.87 to 13.1.2005, which are leave applications/joining applications. The hand writings on these applications have been marked as A1 to A11. Accused P. N. Sharma has not cross examined PW56 and therefore it is clear that A1 to A11 are in the hand writing of accused P. N. Sharma. This accused has cross examined Investigating Officer with a view to show that these records were not obtained legally. In statement under Section 313 CrPC, while answering question no. 186, accused stated that witness S. P. Singh was not competent authority to give these records. Further, the I.O. was also not competent to obtain these records because they form the part of his personal file of service record and that the confidentiality of the record has been violated. I do not find any illegality in taking the official records for the purpose of investigation. Accused has been unable to explain to the court as to what rule or law has been violated and as to how PW56 is not a competent authority to hand over the records to the Investigating Officer for the purpose of investigation.

CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Ld. Counsel for accused has raised a substantial argument that although in his report, GEQD has stated that the questioned hand writings/signatures matched with the admitted hand writings and the specimen hand writings but in the reasons given by him in his report, there is no reference to the admitted hand writings. I agree with his submission. However the court cannot leave this issue unanswered as to whether the questioned hand writings match with the admitted hand writings or not. At the cost of repetition, I reproduce the para 12 of Murari Lal Vs. State of M.P. AIR 1980 SC 531 as under :

"Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative text book and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence."

First of all, I will discuss the issues raised by Ld. Defence Counsel in the cross examination of PW58. The applications A1 to A11 would show that these applications have been addressed to the "Director, National Buildings Organization, Nirman Bhawan, New Delhi". Ld. Defence Counsel has tried to bring out in the cross examination of PW58 that the style of "D" in A8 and A9 in the word 'Director' does not match with Q7. The expert agreed but he stated that the same manner of framing of "D" is similarly available in the 69 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 admitted hand writings at one place or another. I agree with his submission. Ld. Defence Counsel cautiously did not ask as to where the "D" is framed in a different way in admitted documents. A perusal of the application A6 would show that formation of "D" in the word "Director" is not in cursive hand writing as it appears in the application A7, A8 and A9. A perusal of Q7, in which the names of the members attending the MC meeting (D3 page 62 Ex.PW37/A11) have been written, would show that at serial no.9 "Sh. Devi Ram" the letter "D" is written in the similar fashion as in A6. Similarly on page 64 of the register, which is marked as Q11 of Ex.PW37/A12, at serial no.15 the name of "Sh. Dilip Sinha" appears. In this name also the formation of "D" is similar to the formation of "D" written in A6. Same is the case of page 70 (Q23 of D3) where name of "Sh. Dalbir Mishra" is written at serial no.32 and formation of "D" in this name is similar to A6. Same is the case with the formation of "D" in the name "Desh Raj" at serial no.8 of Q25 page 71 of D3. Same is the case of Q26 page 72 of D3, where at serial no.45, the name of "Deen Dayal"

is mentioned. Therefore I fully agree with the testimony of PW58 that the "D" of Q7 is similarly available in the admitted writings. In fact similar formation of letter "D" as appearing in A6 matches with large number of words in the questioned hand writings. Hence, the effort to bring dissimilarity in the formation of "D" in the questioned hand 70 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 writings including Q7 alleged to be written by P. N. Sharma fully match with the formation of "D" in the word "Director" of A6. A6, A7 and A8 also show that accused is in habit of forming the letter "D"

in two different forms.

Now I would like to compare the admitted hand writing contained in A1 to A11 with the questioned hand writings. I would adopt an easier course and would like to compare only those hand written words, which are common in the admitted hand writings i.e. A1 to A11 as well as in the questioned hand writings. A7 and A9 are the leave applications written by accused to "the Director, National Buildings Organization, Nirman Bhawan, New Delhi". Since the name of the society is also National Buildings Organization Group Housing Society and its registered office was situated at Nirman Bhawan, New Delhi, therefore the words "National Buildings Organization", "Nirman Bhawan" and "New Delhi" are also appearing in the proceeding register D3, in which the proceedings alleged to have been forged are written. I may specify that the applications A7 and A9 are admittedly written in the hand of accused P. N. Sharma and the proceedings, which have been alleged to have been forged by P. N. Sharma are from page 56 to page 73 of D3. At page 66, the hand writing on the entire page, has been marked as Q15. These are the proceedings shown to be dated 10.2.1979 under the heading 71 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 "A.G.M.", the first line starts as under :

"A.G.M. of National Buildings Organization Employees Coop. G/H Society Ltd. was held........."

These proceedings are written in hand and the words "National Buildings Organization" are appearing in the same. These words distinctly matched with the same words written in A7 and A9. I may point out that the only difference in A7 and Q15 is the formation of the small letter "r" in the word "Organization". However interestingly the formation of the letter "r" in the word "Organization" in A9 is similar to the letter "r" as appearing in the word "Organization" in Q15.

Same is the case in respect of the words "National Buildings Organization" appearing in the first two lines of Q1 of D3, which matches with A7 and A9. I would point out that there is some difference in the formation of letter "B" in the word "Building" when A7 and A9 are compared with Q1 but in the third line of Q1, second line of Q20, third line of Q22, the letter "B" is formed in the same manner as in A7 and A9 in the word "Buildings". I may further point out that the words "National Buildings" also appear in Q25, where formation of "B" is similar to A7 and A9.

Now I take up the words "Nirman Bhawan". These words are appearing in third lines of Q3, Q6, Q11 and Q20. The manner 72 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 of writing these words is unmistakably the same as in A7 and A9.

Now I would compare the words "New Delhi", which are appearing in the applications A6 to A9. These words are appearing in third lines of Q3, Q6, Q11, Q20 and Q22. The manner of writing these words is unmistakably the same as in the applications of accused, which are A6 to A9.

(3) The specimen hand writings.

It has been vehemently argued by Ld. Defence Counsel that the specimen signatures of A6 were never taken by the investigating officer. My attention has been drawn to the statement u/s 313 CrPC wherein A6 has taken a specific stand that his specimen signatures/handwritings were not taken by the investigating officer. Ld. Defence counsel has drawn my attention to the testimony of P.N. Sharma who testified as A6/DW1. In his evidence, P.N. Sharma has stated on oath that he was summoned by investigating officer on 10.02.2006, 11.02.2006, 13.02.2006, 14.02.2006, 15.02.2006, 16.02.2006, 22.02.2006, 03.03.2006, 21.03.2006, 22.03.2006 & on 04.04.2006, but, his specimen signatures were not taken. It is submitted that in his specimen signatures/handwritings S1 to S6 & S10 to S322, he (i.e. P.N. Sharma) did not put his signatures which shows that these are not his specimen handwritings. Ld. Defence Counsel argues that his specimen signatures were taken in many 73 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 society cases and everywhere he had put his signatures below the same.

On the other hand, Ld. Public Prosecutor submits that this accused did not controvert during the cross examination the testimony of PW59 (i.e. the IO) regarding taking of the specimen signatures. It is argued by Ld. Public Prosecutor that the specimen signatures were taken in presence of Sh. R.S. RayatGrade I (DASS), Government of NCT Delhi, 12/1, Jamnagar House, New Delhi and the said independent witness has also put his signatures on each sheet containing the specimen handwriting/signatures of P.N. Sharma. Ld. Public Prosecutor has drawn my attention to the fact that when in statement u/s 313 CrPC as well as in his own evidence as A6/DW1, P.N. Sharma took the stand that he had never given any specimen signatures to the investigating officer, the prosecution moved an application u/s 311 CrPC praying to the court that Sh. R.S. Rayat may be summoned and examined so that the court reaches a just conclusion as to whether the specimen of handwriting of accused were taken or not. However, this application was dismissed by this court. It is argued that moving an application u/s 311 CrPC for calling R.S. Rayat as a witness shows the bonafides of the prosecution.

I have considered these submissions. Insp. Surender Singh (PW59) has testified that he had obtained the specimen 74 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 signatures/writings of P.N. Sharma from S1 to S6 on 10.02.2006 and further obtained his specimen signatures/writings on 11.02.2006, 13.02.2006, 14.02.2006, 15.02.2006, 16.02.2006, 22.02.2006, 03.03.2006, 21.03.2006, 22.03.2006 & on 04.04.2006, which are S10 to S322, in presence of independent witness R.S. Rayat who appended his signatures at points B on the specimen sheets which are collectively exhibited as Ext.PW58/18 & Ext.PW58/19 (colly). I have perused the entire cross examination of the witness but P.N. Sharma has nowhere controverted the above mentioned facts by giving appropriate suggestions. Therefore, this testimony has to be admitted to be true. It appears that the accused was silently waiting for the closure of the prosecution evidence with a view to take the stand of having not given the specimen signatures. The conduct of the accused shows that he did not deliberately controvert the above testimony of the investigating officer, lest the prosecution may summon R.S. Rayat as prosecution witness to support its claim, before closure of the prosecution evidence. I may point out that this strategy was probably adopted by the accused because prosecution had not listed the name of R.S. Rayat as prosecution witness in the list of witnesses. The prosecution had no reason to call him during the stage of prosecution evidence because P.N. Sharma had not controverted the aforesaid evidence in his cross examination. Therefore, instead of taking the 75 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 defence at the right opportunity of the cross examination of PW59, accused has adopted a strategy, though futile, to turn the tables on the prosecution by taking his stand in his statement u/s 313 CrPC and in his own evidence that no specimen signatures were taken by the IO. It is relevant to mention here that the copies of the specimen sheets were supplied to the accused at the stage of section 207 CrPC, but, nowhere during the long trial, accused whispered that his specimen signatures were not taken. After the closure of the defence evidence by P.N. Sharma, prosecution moved an application dt. 11.04.2013 to produce witness R.S. Rayat. Although, the said application was dismissed by this court on 04.05.2013 because now the entire trial had come to an end and final arguments were fixed soon thereafter, but, it shows that the prosecution had nothing to hide and it made a bonafide attempt to reinforce the testimony of PW59 in respect of taking of the specimen signatures of P.N. Sharma. I may mention here that even in his evidence on oath, P.N. Sharma admits to have visited CBI office on the dates, on which as per the testimony of investigating officer, the specimen signatures/handwritings were obtained by him.

I may further mention that on 27.09.2012 accused P.N. Sharma filed an application raising various points. Vide the order sheet dt. 27.09.2012, I stated that all the points raised in this application would be considered at the final stage. In para 6 of this 76 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 application, accused P.N. Sharma has specifically written that "during the course of investigation the IO compelled the petitioner to give his specimen handwriting and signatures on some already written or some blank papers." It is stated in the application that CBI had used these documents. This itself is an admission of the accused that his specimen handwritings were obtained by the investigating officer during investigation. Although, he has complained in the application that he was compelled to give the specimen signatures, no suggestion to the IO in respect of the compulsion has been given, nor any such allegation was made by him in his testimony as A6/DW1. Thus, it stands proved that IO has obtained his specimen handwritings during the investigation.

In view of the aforesaid discussion, I am left in no doubt that specimen writings of accused P.N. Sharma, which are S1 to S6 & S10 to S322, were obtained by investigating officer during investigation in presence of R.S. Rayat, an independent witness on 10.02.2006, 11.02.2006, 13.02.2006, 14.02.2006, 15.02.2006, 16.02.2006, 22.02.2006, 03.03.2006, 21.03.2006, 22.03.2006 & on 04.04.2006.

(4) GEQD report in respect of the questioned documents.

I would like to reproduce the relevant portion of PW58 Dr. S. Ahmad, Assistant GEQD, Central Forensic Institute Bhopal, who 77 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 examined the questioned hand writings/signatures with the specimen as well as admitted signatures/hand writings of accused Prem Narain Sharma, which is as under :

"Q1, Q1A & Q2A (D3) (Ext.PW37/A9), Q3, Q4 Ext.PW37/A10, Q6 to Q8, Q10 Ext.PW37/A11, Q11 to Q13 Ext.PW37/A12, Q15 to Q29 Ext.PW58/1(colly) bearing the seal of GEQD at points A on each page, Q30 to Q63 Ext.PW58/2 (colly) bearing the seal of GEQD at points X placed at pages 251/C to 218/C in file D2 Vol. II, Q64 already exhibited as Ext.PW25/C, Q65 to Q169 collectively marked as Ext.PW58/3 placed at pages 216 to 114/C, Q170 & Q171 already exhibited as Ext.PW39/A, Q172 to Q182 colly marked as Ext.PW58/4, Q184 to Q186 colly marked Ext.PW58/5, Q188, Q190, Q192 to Q198, Q200, Q202, Q204 to Q210, Q212 to Q214, Q216 to Q230, Q232 to Q237 colly. Marked as Ext.PW58/6, Q238, Q239 already exhibited as Ext.PW25/A, Q240 to Q242, Q244 to Q248, Q250, Q252 to Q270, Q272 to Q275 colly. Ext.PW58/7, Q276 Ext.PW39/B, Q278, Q280 to Q284, Q286 to Q298, Q300 to Q312, Q314 to Q316, Q318, Q320, Q322 to Q326, Q328 to Q336, Q338 to Q346, Q348, Q350, Q352,Q354, Q356 to Q372, Q374 to Q386, Q388 to Q394, Q396 marked as Ext.PW58/8 (colly).

Q398 to Q404, Q407 to Q409, Q411, Q415 , Q416, Q430, Q431, Q435 to Q437, Q441, Q442, Q446, Q448, Q450, Q453, Q455, Q456, Q460, Q463, Q469 to Q472, Q476, Q480, Q482, Q483, Q485, Q486, Q488, Q495 to Q504, Q506, Q507, Q510, Q514, Q515 already exhibited as Ext.PW29/PX5 (D4).

Q519, Q521, Q523, Q533, Q535, Q537, Q543, Q545,Q546, Q550, Q554, Q556, Q560, Q564, Q566, Q568, Q572, Q574, Q576, Q580, Q582, Q584, Q586, Q588, Q592, Q594, Q596, Q598, Q600, Q602, Q604, Q608, Q610, Q612, Q614, Q620, Q622, Q626, Q628, Q630, Q632, Q634, Q636, Q638, Q640, Q642, Q644, Q646, Q648, Q650, Q652, Q654, Q656, Q658, Q660, Q662, Q668, Q670, Q672, Q674, Q676, Q678, Q680, Q682, Q684, Q686, Q690, Q692, Q694, Q700, Q702, Q704, Q706, Q708, Q710, Q712, Q714, Q716 already Ext.PW29/PX3 colly. (D5).

Q717 to Q719, Q721, Q724, Q728, Q729, Q734 to Q736, Q738 to Q742, Q744, Q745, Q748 to Q751, Q754, Q755, Q759, Q760, Q763, Q766, Q768, Q769, Q772, Q773, Q777, Q780 to Q784, Q789, Q793 to Q799, Q801, Q803, Q804, Q809, Q810, Q813 to Q816, Q819 to Q823, Q827 and Q828 already exhibited as Ext.PW29/PX4 colly (D6).

Q831 to Q836, Q838 to Q840, Q842 to Q852, Q854 to Q866, Q868, Q873, Q874, Q876 to Q886 now marked as Ext.PW58/9 (D2 Vol.I) bearing the seal of GEQD at points X. Q887 Ext.PW43/X9, Q888 Ext.PW58/10, Q889 & Q890 Ext.PW58/11, Q891 Ext.PW58/12, Q892 Ext.PW58/13, Q893 to Q900 Ext.PW58/14, Q902, Q903 Ext.PW44/B, Q904, Q905 Ext.PW58/15, Q906 to 78 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Q908 Ext.PW58/16, Q909 to Q920 already exhibited as Ext.PW44/A. The specimen writings and signatures are of one Sh. Prem Narain Sharma S1 to S6 (D27) colly. Ext.Pw58/18, S10 to S322 Ext.PW58/19 (Colly.) and A1 to A11 (D28) Ext.PW56/B(colly)".

.......................................

"Again, on 03.10.2006, vide letter Ext.PW58/C issued under the signatures of Sh. M.K. Bhatt, Superintendent of Police, CBI, BS&FC, Delhi, some more documents marked as Q927, Q928 already exhibited as Ext.PW54/B, Q937, Q939, Q941, Q943, Q945, Q947, Q949, Q951, Q953, Q955, Q957, Q958A, Q960, Q962, Q964, Q966, Q968, Q970, Q972, Q974, Q976, Q978, Q980, Q982, Q984, Q986, Q988, Q990, Q992, Q994, Q996, Q998, Q1000, Q1002, Q1004, Q1006, Q1008, Q1010, Q1012, Q1014, Q1016, Q1018, Q1020, Q1022, Q1024, Q1026, Q1028, Q1030, Q1032, Q1034, Q1036, Q1038 and Q1040 Ext.PW58/17 colly. The specimen writings and signatures are of one Sh. Prem Narain Sharma S346 to S352 Ext.PW58/20 (colly.)"

I have perused the hand writing expert's reports, which are Ex.PW58/D and Ex.PW58/G. In the report Ex.PW58/D, the questioned hand writing, mentioned in the first paragraph above, has been dealt and the reasons have been given in Ex.PW58/F, which run into more than six pages. In respect of the questioned hand writings/signatures mentioned in second paragraph of the testimony reproduced above, the detailed reasons have been given by the hand writing expert in his report Ex.PW58/J (at page 3 and continuing upto page 4 of the report). The GEQD has given in detail his reasons for his opinion. The cross examination of this witness was done by Sh. Yogesh Verma, adv. for A6 and in his cross examination he was unable to point any defect in his opinion on the matching of the questioned hand writings/signatures with the specimen signatures. I have also seen the questioned hand writings as well as the specimen 79 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 hand writings (i.e. S1 to S6, S10 to S322 and S346 to S352). On careful seeing these hand writings and signatures, I fully agree with the reasons given by GEQD in his report. For sake of brevity, I am not inclined to reproduce the said detailed reasons, specially when Ld. Counsel for accused could not bring to the notice of the court any inaccuracy in the opinion of GEQD during the cross examination or during final arguments.

(5) Whether the opinion of the handwriting expert given to investigating officer is a statement u/s 161 CrPC and would be hit by Section 162 CrPC?

Ld. Defence counsel has referred to Zahiruddin Vs King Emperor decided on 18.02.1947 by Bombay High Court. No citation has been given, but, it appears that the print out has been taken out by the web site of "Indian Kanoon". Although, this manner of citing a case law is not acceptable and unless a proper citation is given, it is not rice to consider such case law. However, I would like to deal with this case law. Facts in this case were that an eye witness namely Mr. Roy made material use of his statement u/s 161 CrPC at the time of his examination in chief. High Court held that this evidence has to be excluded because it is hit by Section 162(1) CrPC. The argument of Ld. Defence counsel is that the handwriting expert gave a signed 80 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 statement in form of his opinion/report to the investigating officer, therefore, the report of the handwriting expert is a statement u/s 161 CrPC and when he uses his report while testifying before this court, such testimony would be hit by section 162(1) CrPC. Consequently, it is argued that the entire testimony of the handwriting expert should be taken out being inadmissible evidence. My attention has been drawn to the testimony of PW58 Dr. S.Ahmad, Asstt. GEQD wherein he reproduced his report in his examinationinchief.

I have considered the submissions of Ld. Defence Counsel. The law as enunciated in the aforesaid judgment of Bombay High Court is by now a settled proposition. Hence, this court is to see as to whether the report of the expert is a statement u/s 161 CrPC? If so, the arguments of Ld. Defence counsel would hold good.

A perusal of section 161 CrPC would show that it deals with "examination of witnesses by police." In the present case, GEQD expert (PW58) was not examined by police during investigation. Secondly, the police has to examine a witness orally. This is not the case with PW58 who prepared it in writing in his office. Thirdly, the investigating officer examines those persons who are "acquainted with the facts and circumstances of the case." PW58 is not such a witness. He has no knowledge about the facts of the case. He is only a scientific expert. Therefore, his report would not fall in four corners of 81 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Section 161 CrPC. Consequently, it would not be hit by section 162(1) CrPC. A report of the scientific expert has been made admissible in evidence u/s 293 CrPC which reads as under:

"293. Reports of certain Government scientific experts. (1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, summon and examine any such expert as to the subjectmatter of his report."

...........................

A perusal of Section 293 CrPC puts the report of a scientific expert on a different footing and it cannot be termed as a statement u/s 161 CrPC. Hence, I find no substance in the arguments of Ld. Defence Counsel on this point.

Ld. Defence Counsel argues that when PW58 was testifying, he was having a slip in which various particulars had been written by him. This slip was taken by the court and has been exhibited as Ext.PW58/PX. It is argued that since the witness was testifying from his slip, he should not be believed. I have perused the testimony of PW58. In cross examination, PW58 admitted that he had prepared a note for the purpose of identifying exhibits received in GEQDShimla for examination. The said slip was taken on record and exhibited as 82 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Ext.PW58/PX. The perusal of this slip would show that against the name of each accused, the Q numbers and Snumbers (i.e. the number of the Questioned handwriting and the number of the specimen handwriting is mentioned). Even if the witness has seen his note at the time of his testimony, the same does not make any difference because it is his personal note. The real evidence is about his report, which, as I have already discussed, does not suffer from any discrepancy or defect or lack of knowledge or lack of due diligence. (6) What is proved by the opinion of handwriting expert?

Having held that GEQD report is worthy of credence, this court would embark upon an inquiry as to what it proves. I will take up this issue under following headings:

(i) Application for revival dt. 25.02.2003.

The entire proceedings in the office of RCS started on this application wherein the name of applicant has been shown as "Ram Pakash SharmaHony. Secretary" of National Building Organization Employees Group Housing Society Ltd., B/8/6146, Vasant Kunj, New Delhi (South West). This application is placed at page no. 4/C & 5/C in file D2 Vol. IV. This application has been exhibited as Ext.PW43/X9.

On this application, the signatures of "Ram Prakash" are written at Q887. The handwriting expert in his report has opined 83 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 that this handwriting matches with the specimen handwriting S1 to S6, S10 to S322 and A1 to A11. I have already discussed that these specimen handwritings and admitted handwritings are that of accused P.N. Sharma. I would refer specifically to S49 to S55 which have distinct similarity with the signatures at Q887. Thus, it stands proved that it was accused P.N. Sharma who had moved this application on 25.02.2003 to the Registrar Cooperative Societies under the fake name of Ram Prakash.

(ii) The writings on the proceedings/minutes of the meetings of the society.

The aforesaid application was the PUC upon which Dealing Clerk initiated the process on 06.03.2003. On this date, a copy of AGM meeting dt. 20.02.2003 was shown to the dealing clerk. Vide these minutes of the meeting (Extraordinary General Body Meeting), the name of society was changed from NBO to Kevalya Vihar Cooperative Group Housing Society Ltd. The original proceedings register D3 (Ext.PW29/PX2), which was seized from Harpreet Singh Khurmi by CBI, contains the original resolution in it. As per this resolution, the GBM was held under the chairmanship of "R.P. Sharma". The entire proceedings are written in black pen and have been marked as Q25 on page 71, Q26 on page 72 and Q27 at page

73. Below it, there are signatures of the President at Q28 which 84 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 read as "Ram Prakash." The minutes of meetings have been exhibited as Ext.PW58/1.

As per GEQD report Ext.PW58/B, the same match with the specimen and admitted handwriting of accused P.N. Sharma. It shows that the entire proceedings have been written by accused P.N. Sharma vide which the name of the society has been changed.

(iii) Proceedings/Minutes of AGM dt. 25.12.2003.

The noting dt. 06.03.2003 Ext.PW43/X2 of the RCS file D2 Vol IV has referred to the general body meeting resolution dt. 25.12.2002, vide which the address of the society has been changed. Copy of this proceedings were placed int he file which is Ext.PW58/14. The original of the same is placed on page 69 & 70 of D3 and has been marked as Q22 & Q23. Below it, signatures of President are placed at Q24. As per GEQD report, Q22, Q23 & Q24 have been written by accused P.N. Sharma.

(iv) The documents referred to in the detailed note dt.

20.03.2003.

I have already reproduced the aforesaid notings. Perusal of this note shows that R.P. Sharma the President of the society appeared with the original record before the dealing clerk. In the note, the reference has been made to a general body meeting held on 16.01.1979 vide which the membership of the society was opened to 85 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 all the applicants irrespective of their caste, creed, area and religion. I may point out that membership of this society was restricted to the officials of NBO. The copy of the proceedings dt. 16.01.1979 are placed at pages 14/C, 13/C & 12/C . The original of it is written in the proceeding register of the society i.e. D3. The minutes are written at page 56, 57 & 58 which are mark Q1 & Q1A. Below it, there is signatures of one Kailash NathHony. Secretary at Q2A. The GEQD report mentions that Q1, Q1A and Q2A matches with the specimen/admitted handwritings of P.N. Sharma. I fully agree with the report on this point. However, the GEQD could not give any opinion on Q2, which purports to be the signatures of B.S. Bhattithe President.

I may point out that initially B.S. Bhatti was the President of the society. He was examined by prosecution as PW37 and he testified that he was unable to admit or deny his signatures at Q2. However, he has specifically testified that he did not attend any meeting of the society after 1978. This is an uncontroverted testimony. Therefore, it is clear that at point Q2 the signatures cannot be that of B.S. Bhatti.

Thus, it stands proved that P.N. Sharma was the person who wrote these proceedings with a view to open up the membership to all the persons.

CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013

(v) Resignation Letters of 56 initial members The note dated 20.3.2003 enumerates 56 members, who had resigned till 10.2.1979. The photo copies of 34 resignation letters are placed in D2, VolumeI. The remaining members are stated to have received their respective refund of their shares by appending their signatures on a separate sheet. Photo copy of the same is also placed in the file D2, VolumeI of the office of RCS. The photo copy of the resignations from 54/C to 20/C are attested by "Ram Prakash"

and his signatures in original are from Q831 to Q866. The collective resignations of the members are on page Q867 and Q868 signed by "Anurag" of Kevalya Vihar CGHS. There is no opinion on Q867 but as per GEQD report the signatures Anurag at Q868 match with the specimen hand writing of P. N. Sharma. Similarly on resignations, Q831 to Q836, Q838 to Q840, Q842 to Q866 are the signatures of "Ram Prakash" written by P. N. Sharma.

(vi) Copy of M. C. Resolution membership register.

R. P. Sharma also files the copy of M. C. resolution and copy of the membership register showing refund of the resigned members. The copies of these documents have been attested by "Anurag" on behalf of Kevalya Vihar CGHS Ltd. These are placed at page 17/C to 1/C of file D2, VolumeI. The signatures of Anurag have been marked from Q869 to Q886. As per GEQD report Q873, Q874, Q876 to 87 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Q886 match with the specimen hand writing of accused P. N. Sharma. I may point out that Anurag has been shown the honorary secretary of Kevalya Vihar CGHS vide an affidavit dated 20.3.2003 Ex.PW44/B (placed at 17/C in file D2, VolumeIV), which was filed in the office of RCS during verification.

(vii) Enrollment of 114 members.

The photo copies of the enrollment applications of these members are placed in D2, VolumeII of the RCS, which is exhibited as Ex.PW59/A4. Each of the application has been attested by "Anurag" of Kevalya Vihar CGHS. His signatures are from Q30 to Q143. As per GEQD report Ex.PW58/B, all these signatures match with the specimen hand writing of accused P. N. Sharma.

A membership register D4 (Ex.PW29/PX5) was seized from Harpreet Singh Khurmi, which shows that from member no.57 Ramdas to member no.170 Kamal Sharma were shown to have signed from Q404 to Q517. As per the note, the copy of this register was obtained by dealing clerk and is placed in D2, VolumeI. This copy has been signed by "Anurag", which matches with the specimen hand writing of accused P. N. Sharma. Out of these questioned signatures mentioned above in the original register (D4), as many as 48 signatures match with the specimen hand writing of accused P. N. Sharma.

CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013

(viii) Affidavit signed by President/Secretary of the society placed in D2 Volume IV.

During verification of records, one affidavit of "Anurag", the Hony. Secretary of the society dated 11.3.2003 (placed at page 37/C) and another affidavit of Anurag dated 20.3.2003 placed at page 36/C to 27/C were filed in the office of RCS. Both the affidavits are in the name of Anurag but at the end of the affidavit at page 27/C, the signatures are that of Ram Prakash at Q911 and Q912. As per GEQD report, both the signatures have been written by accused P. N. Sharma.

There is a joint affidavit of Ram Prakash, the President and Anurag, the Secretary of the society, which is proved as Ex.PW58/15 (placed at page 18/C of D2, VolumeIV). The signature of "Ram Prakash" is present at Q904 and signature of Anurag is present at Q905 on this affidavit. As per GEQD report, both the signatures have been written by accused P. N. Sharma.

Another affidavit dated 20.3.2003 of the President of the society was filed in the RCS office, which shows that the deponent as Anurag. His signatures at Q902 and Q903 have been opined by GEQD to have been written by accused P. N. Sharma.

(ix) The approved list/freeze list of 114 members.

The noting dated 20.3.2003 refers to a list of 114 members 89 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 filed for the purpose of allotment of land. This is placed at page no. 23/C to 26/C of Ex.A6/DW1/PX. On each page the signatures of Ram Prakash and Anurag as well as the signatures of Assistant Registrar J. S. Sharma are available. The signatures of "Ram Prakash"

and "Anurag" are from Q913 to Q920. As per GEQD report, all these signatures match with the specimen hand writing of accused P. N. Sharma.

(x) Affidavits of the members filed during verification in the office of RCS.

113 affidavits available at page 1/C to 113/C, were filed in the office of RCS and are contained in D2, VolumeII. These were filed for the purpose of verification and are purported to have been signed by the members. These are typed affidavits. However the name, parentage and address are hand written. Each affidavit has a signature of the deponent at two places. These hand writings and signatures are from Q170 to Q397. The GEQD report Ex.PW58/D had compared these writings and signatures with the specimen signatures of P. N. Sharma which are S1 to S6, S10 to S322 and admitted writings A1 to A11. As per the report, the hand writing/signatures from Q170 to Q182, Q184 to Q186, Q188, Q190, Q192 to Q198, Q200, Q202, Q204 to Q210, Q212 to Q214, Q216 to Q230, Q232 to Q242, Q244 to Q248, Q250, 90 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Q252 to Q270, Q272 to Q276, Q278, Q280, Q284, Q286 to Q298, Q300 to Q312, Q314, Q315, Q316, Q318, Q320, Q322 to Q326, Q328 to Q336, Q338 to Q346, Q348, Q350, Q352, Q354, Q356, Q357 to Q372, Q374 to Q386, Q388 to Q394, Q396 matches with the specimen hand writing of accused P. N. Sharma.

(xi) Audit report.

The audit report was prepared by accused P. K. Thirwani. The entire record is available in D10 (Ex.PW54/X). There is one option cum appointment letter (Ex.PW54/B) in yellow colour vide which P. K. Thirwani has been appointed as auditor. On this the name of "Anurag" and his signatures are written at Q927 and Q928 certifying the name of the society and other particulars to be correct. As per GEQD report Ex.PW58/G, both these hand writings match with the specimen hand writing S346 to S352 (Ex.PW58/20) written by P. N. Sharma. The audit documents considered by accused P. K. Thirwani bear the signatures of "Anurag", Secretary and "Ved Prakash", Treasurer, which are present no page 1 to page 53 collectively exhibited as Ex.PW58/17. As per GEQD report Ex.PW58/G, the signatures of Anurag and Ved Prakash on all these documents match with the specimen hand writings of accused P. N. Sharma.

CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013

(xii) Enrollment letters and Resignation Letters of 114 members.

CBI has seized a file (D5) Ex.PW29/PX3, which contains 100 enrollment letters of the members. All the letters are printed but particulars of the members are hand written. At the end of the letter, there are signatures of the members. These hand writings and signatures have been marked for the purpose of comparison as Q518 to Q716. The GEQD report Ex.PW58/D shows that most of the signatures have been written by accused P. N. Sharma.

Same is the case with a file D6 Ex.PW29/PX4, which contains resignation letters of 114 members. The questioned signatures and hand writings are from Q817 to Q830. As per the GEQD report Ex.PW58/D, the most of the signatures match with the specimen hand writings of accused P. N. Sharma.

(7)          Other submissions
             It   is   argued   by     Ld.   Defence   counsel   that   in  Chinar

Cooperative Group Housing Society Ltd. Vs Delhi Development Authority and others, Hon'ble Supreme Court of India had issued specific directions to the CBI that "there shall not be any arrest or registration of criminal cases without the leave of the High Court." An unattested copy of this order dt. 04.08.2006 has been filed by this accused. I have perused this order and I find that this order is not 92 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 applicable to the present case. None of the accused persons was arrested in this case. Further, the FIR in the present case was registered on 04.01.2006 i.e. seven months prior to this order. Hence, the order of Supreme Court in Chinar CGHS does not affect this case.

It is argued that no signature of complainant/first informant is present on the FIR. I am of the opinion that it is only a minor irregularity, which would not vitiate the FIR or the trial. It is argued that High Court of Delhi had ordered CBI to investigate the matter by constituting an investigating team headed by an officer not below the rank of DIG. It is argued that the present case was investigated by an officer of the rank of inspector, which is a violation of order of High Court of Delhi. Hence, it is argued that the investigation is vitiated. I am of the opinion that it is not a direction that DIG himself would investigate the case. He has to head the team of the investigators who may be Inspectors or the other CBI officers.

It is argued that the society was not made an accused by CBI. Ld. Defence Counsel has referred to Aneeta Hada Vs M/s Godfather Travels & Tours decided on 27.04.2012 by the Hon'ble Supreme Court of India in Crl. Appeal no. 838/2008. The facts of the case cited by the Ld. Defence Counsel are totally different from the present one. A cooperative group housing society consists of its members. In the present case, all the promoter members were fakely 93 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 shown to have resigned and fake 114 persons were shown to be enrolled as members. Therefore, the original (promoter members) of the society could not have been prosecuted. The society, which is a legal person, had not done any act to show that it had committed any offence. Therefore, in the present case, the society could not have been an accused.

It is argued that no offence u/s 468/471 IPC is disclosed. I disagree with this submission. Forgeries of such a large number of proceedings has been discussed above. These forged proceedings, forged enrollment letters and resignation letters etc. were presented in the office of RCS. In this manner, not only the forgery was committed but the said forged documents were presented in the office of RCS knowing the same to be genuine by P.N. Sharma. It is argued that offence u/s 419/420 IPC is not disclosed. I agree to this submission only to the extent that the offence u/s 418 IPC is disclosed against the accused.

An application dt. 27.09.2012 was filed by accused P.N. Sharma raising several issues. However, this court had ordered that the points raised in this application would be considered at final stage. In this application, accused P.N. Sharma had raised the issue that when the offence was committed, DCS Act1972 was applicable. Now DCS Act, 1972 has been repealed in the year 2005 and a new DCS Act, 94 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 2003 was made applicable wef 01.04.2005. It is submitted that DCS Act, 2003 is totally a revenue focussed Act having its own penal provisions. It is argued that now the present case should be dealt with in accordance to the provisions of DCS Act, 2003. It is argued that entire investigation has been carried out as per the repealed DCS Act, 1972. I disagree with this submission. The repealed Act remains very much relevant to the transactions done during its operation. All those acts which were done under the operation of the repealed Act would have to be judged in accordance to the said Act. I hasten to add here that this court is not dealing with the offences under the DCS Act, 1972. Rather, this court is dealing with the offences of Prevention of Corruption Act and IPC. It is argued that no consent of the Government of NCT of Delhi was taken before initiating the investigation and prosecution. I refer to State of Bengal Vs. Committee for Protection of Civil Rights decided on 17.2.2010 wherein Hon'ble Supreme Court of India held that where the High Court or Supreme Court orders an investigation by CBI, there is no requirement for obtaining consent from the State Government under section 6 of Delhi Special Police Establishment Act, 1946. (in short DSPE Act).

It is further stated in the application that the accused has an apprehension in his mind that this court is prejudiced because since 95 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 the Hon'ble High Court of Delhi is a complainant in this case and is keeping watch over these matters (as Writ Petition No. 10066/2004 vide which FIRs were registered in the society cases is still pending for disposal) and that since this court is directly subordinate to the High Court of Delhi, this court would not be able to do justice to the accused persons in this case.

The apprehension of the accused is laughable. The job of Hon'ble High Court of Delhi was over as soon as it ordered the investigation into the bunglings in the office of RCS. Thereafter, the job of CBI started which took no instructions from the Hon'ble High Court as to how the investigation is to be conducted and as to which person should be included as accused. The trial before the Special Judge under the Prevention of Corruption Act takes place as per law and Hon'ble High Court of Delhi has no role to play in the same except when it exercises the powers of revision and appeal etc. Overall scenario emerges from the above stated forgeries.

The above discussion would show that accused Prem Narain Sharma was in possession of the documents pertaining to National Building Organization CGHS. Ld. Defence counsel has argued that there is no evidence that he has stolen these documents.

Ld. Defence Counsel has referred to Magan Bihari Lal Vs State of Punjab AIR 1977 SC 1091 where the accused was acquitted 96 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 because prosecution did not lead any evidence to connect him with the theft of blank railway receipt at Banmor Station.

I have perused this case law. Accused, in the said case, was guard, posted in Railway Administration with his Head Quarter at Agra and had nothing to do with the place of theft. However the facts of the present case are different. The registered office of National building Organization CGHS was shown to be Nirman Bhawan, New Delhi, where the office of National Building Organization was situated. Therefore, it is reasonable to believe that the documents of NBO CGHS should be available in the office of National Building Organization at Nirman Bhawan. PW56 Sh. S. P. Singh has testified that accused P. N. sharma was posted in National Building Organization, Nirman Bhawan as Research Office in 200506. Thus, these are sufficient circumstances to prove that accused P. N. Sharma got these documents from his office.

This is corroborated by the testimony of PW29 Sh. Harpreet Singh Khurmi, who has testified that he had received the documents of National Building Organization CGHS from accused P. N. Sharma. He has also testified that accused P. N. Sharma has introduced himself as R. P. Sharma. GEQD report has proved that the application for revival of the society Ex.PW43/X9 was moved by none other than A6, who had signed as Ram Prakash. In the notings dated 11.3.2003 (wrongly 97 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 typed as 11.3.2002), 18.3.2003 and 20.3.2003, the name of the Secretary and President of the society has been written as R. P. Sharma. I may point out that the application Ex.PW58/X9 for revival was moved by Ram Prakash Sharma, Hony. Secretary. It proves that R. P. Sharma and Ram Prakash Sharma are one of the same person. GEQD report and testimony of Harpreet Singh Khurmi has proved that signatures on the application actually written by P. N. Sharma, who used to introduced himself as R. P. Sharma. Thus, it is clear that accused P. N. Sharma had moved this application and was appearing in the office of RCS on almost on all dates sometimes as Secretary and sometimes as President of the society as reflected from the notings. Accused R. P. Sharma is although extremely intelligent person but has changeable personality. The opinion of GEQD and testimony of Harpreet Singh Khurmi shows that he changes his name and changes his designations. In the note sheet of 11.3.2003 and 18.3.2003, he has been mentioned as the Secretary of the society. In two notings dated 20.3.2003, he has been shown to be the President of the society. As if, it was not enough, GEQD report has proved that he also signed as Anurag, Hony. Secretary of National Building Organization CGHS and on various affidavits and documents as already discussed, for example Ex.PW44/A and Ex.PW58/15 etc. and has also signed as Anurag, the Secretary and as Ved Prakash, the Treasurer in the audit documents at 98 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 a single place. He has forged the signatures of 114 members of the society in the membership register D4. He prepared fake proceedings regarding resignations of all the promoters members and put signatures of 114 fake members. He forged the proceedings of change of address of the society and change of the name of the society from National Building Organization CGHS to Kevalya Vihar CGHS. From these facts, a clear inference can be drawn that this was done with a view that in case the land is allotted to the society, the original members may only think that the land allotted to Kevalya Vihar CGHS and not to their own society i.e. National Building Organization CGHS. The change of address of the society is also fraudulent. All the resignation letters and new enrollment letters have been forged by this accused. It is interesting to note that as per the testimony of PW29, accused P. N. Sharma had handed over the file of National Building Organization CGHS along with the resignation letters of all 114 fake members.

I have already discussed that all these resignation letters are also fake. This means that when accused P. N. Sharma handed over the society to Harpreet Singh Khurmi, it was ensured by A6 that no fake member actually exist and Harpreet Singh gets a free hand in enrolling new members. It is pertinent to note that Harpreet Singh Khurmi (PW29) has testified that accused told him that on account of 99 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 resignations of 114 members, he (i.e. PW29) could enroll new member in place of them and he (i.e. A6) demanded from him one flat after construction of building. Harpreet Singh Khurmi testified that P. N. Sharma has told him that the society was the genuine society and the documents of the society were properly maintained. Thus all the forgeries have been done single handedly by accused P. N. Sharma. He was controlling all the documents of the society. He was acting President, Secretary and Treasurer of the society at the same time. He put signatures as R. P. Sharma, Anurag and Ved Prakash with impunity.

I may point out that in fact Anurag and Ved Prakash are non existent persons. I may point out that PW12 Jaipal Singh, the Postman, took the register envelope (D40) addressed to Ved Prakash resident of 27B, Yamuna Vihar, Delhi and returned the envelope with the report that no such number with block. Similarly PW20 Anil Kumar the resident of N128, Budh Vihar, New Delhi has testified that no person with the name of Anurag has ever resided there. I may point out that Ved Prakash has been shown at serial no.52 and Anurag has been shown at serial no.59 at the freeze list, which has been signed by A6 at Q919 as Ram Prakash and Q920 as Anurag.

He appeared in RCS office as President as well as Secretary of the society. Why the RCS official did not note this fact is a story, 100 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 which would be discussed henceforth. But sufficient it to say that accused P. N. Sharma is the master mind of the entire conspiracy and master architect of the entire forgeries of the documents in question. RAKESH KUMAR SHARMA (A3) Sh. R.P. Shukla, Adv. has assailed the sanction order u/s 19 of the Prevention of Corruption Act. Ld. Defence Counsel has drawn my attention to the testimony of PW47 S.K. Chaudhary who had accorded the sanction to prosecute accused Rakesh Kumar Sharma. Ld. Defence Counsel has argued that in cross examination, he testified that apart from the documents sent by CBI, he also relied upon the inquiry held by his office. He stated that there is a procedure that there are few inquiry officers on the panel of Delhi Government and one inquiry officer is asked to carry out the inquiry taking into consideration all the documents. Ld. Defence Counsel submits that Rakesh Kumar Sharma examined Rohtas Kumar in his defence as A3/DW1. This witness who is the Accounts Officer in NCC Department, Old Secretariat, Delhi testified that S.K. Chaudhary, the then Dy. Director General was the sanctioning and disciplinary authority in respect of accused Rakesh Kumar Sharma. As per record, no inquiry was constituted for the purpose of granting sanction of prosecution against this accused to examine the allegations against him. I am of the opinion that by this mere fact it cannot be said that 101 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 S.K. Chaudhary did not apply his mind while according the sanction. The testimony of a witness may suffer from loss of memory due to lapse of time. Therefore, in view of the submissions of the defence counsel, I would reject the piece of cross examination of PW47 in which he had stated that some inquiry was conducted to examine the documents. However, in his examination in chief, PW47 has stated that he had gone through complete documents of CBI in detail and thereafter applied his mind and gave his dictation on 16.10.2006 for prosecution of Rakesh Kumar Sharma. The sanction order Ext.Pw47/A is a speaking order and I find no illegality in this sanction order.

Ld. Defence Counsel has referred to Ms. Mayawati Vs Union of India (a judgment dated 06.07.2012 in Writ Petition (Crl.) No. 135/2008) in which Hon'ble Supreme Court held that no consent of the State Government under section 6 of Delhi Special Police Establishment Act, 1946 was taken before registration of the FIR and therefore Supreme Court quashed the FIR lodged by the CBI against Mayawati. Ld. Defence Counsel argues that in the present case also, there are no directions for registration of the case. I disagree with his submissions. In Writ Petition No. 10066/2004, Hon'ble High Court of Delhi directed the CBI to conduct investigation in the whole matter relating to 135 cooperative group housing societies. As per CrPC, the 102 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 investigation starts after registration of the FIR. So far as requirement of Section 6 of Delhi Special Police Establishment Act, 1946 is concerned, Hon'ble Supreme Court in State of Bengal Vs Committee for Protection of Democratic Rights, Civil Appeal no. 62496250 of 2001 decided on 17.02.2010 has held that once Supreme Court or High Court order CBI to investigate a case, there would be no requirement for taking consent u/s 6 of Delhi Special Police Establishment Act, 1946 from the State. In Mayawati's case, there was neither any specific direction from the Hon'ble Supreme Court to investigate the disproportionate assets against her nor CBI has taken the consent of State Government u/s 6 of DSPE Act.

The next limb of the arguments of Ld. Defence Counsel is that accused Rakesh Kumar Sharma is only a dealing clerk. His job is simply to prepare the note as per the documents produced by the office bearers of the society.

My attention has been drawn to the cross examination of PW50 Ashok Bakshi, who had passed winding up order in this case. In cross examination by Sh. R. P.Shukla, Ld. Defence Counsel, he testified that "normally he places such documents on the recent file and submits it before the Assistant Registrar". Therefore, it is argued that the job of the dealing clerk is just to put a note before the Assistant Registrar and it is the duty of the Assistant Registrar to thoroughly 103 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 examine the note of dealing assistant. My attention is drawn to the reply of PW50 Ashok Bakshi to the court question during examination in chief, where he stated that working of the office of RCS during his time was that dealing assistant would prepare a note and it would be thoroughly examined by Assistant Registrar and after examining the note of the dealing assistant, he would give his own note and transmit the file to Deputy Registrar. Thereafter Deputy registrar would independently examine the file in view of the note of the subordinates and then he would put his note to the Registrar. Registrar after going through his note would give his recommendations where the suggested action is approved or he would ask for the information regarding any doubt.

I am of the opinion that Ld. Defence Counsel is drawing wrong inference from this testimony. As per this testimony the dealing clerk is the first person, who would prepare the note. Naturally he would thoroughly perused the file for the purpose of doing it. His note dated 6.3.2003 shows that not only he has noted the facts of the matter but has also suggested by quoting Section 63(3) of DCS Act that Registrar may cancel the order for winding up of a cooperative society at any time. To say that he did not make any recommendation would not be correct because by quoting Section 63(3) of DCS Act, he has indicated the higher officers that the society is required to be 104 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 revived.

Ld. Defence Counsel has brought a circular dt. 31.03.2000 issued by R.K. Srivastava, the then RCS, vide which the official work distribution has been specified. At point 19, the inspection of documents under Rule 41 has been assigned to the Assistant Registrar. Although this has not been proved by the accused, but, I would like to consider this circular also. A perusal of Rule 41 of DCS Rules 1973 would show that it is concerned with the inspection of the records by member of cooperative society and the Assistant Registrar has been authorized vide above circular to certify the copy of such document as true. [see Rule 41(4)]. Therefore, this circular is of no help to the accused. Even if, it is presumed that the dealing clerk is to write a note only as per the documents produced, it is his duty to make a noting and raise an objection if something unusual is found. I have already reproduced the notings in earlier part of the judgment. Perusal of the note dt. 06.03.2003 Ext.PW43/X1 would show that this accused has mentioned that the society was placed under liquidation on 14.02.1979. It has also been mentioned that although the society in its application (i.e. the PUC Ext.PW43/X9) had written that this order was challenged by them repeatedly, but, there is nothing on such record. This fact shows that he had gone through the entire files maintained in the RCS office pertaining to this society. He has 105 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 mentioned that on 16.01.1979(inadvertently typed as 16.10.1979) the society opened its membership to all. Similarly in his noting dated 20.3.2003, he has written a detailed note. In his detailed note, he has mentioned following dates :

1) On 16.1.1979, the society resolved that the membership of the society be opened up to all. Copy of the relevant resolution was annexed with the note at P14/C in the file D2, VolumeIV.

2) Vide order dated 14.2.1979, the society was brought under liquidation.

3) On 10.2.1979, the election of the M. C. were held as per the affidavit of the President of the society. (P17/C) I may point out that in this note this accused has specifically mentioned that R. P. Sharma had appeared along with the original record. Although photocopy of the proceedings dated 1.12.1976 vide which the byelaws were adopted initially, the photo copy of General Body Meeting dated 16.1.1979 opening up the memberships to all, resolution dated 25.12.2002 for changing the address of the society and the copy of extraordinary General Body Meeting dated 20.2.2003 changing the name of the society from National Building Organization CGHS to Kevalya Vihar CGHS have been taken by the dealing clerk on the file. However, it is important to see as to what he did not mention. From the original proceedings register (D3) in which fake 106 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 proceedings have been created by P. N. Sharma, I would mention as to what proceedings took place as per the fake proceedings and on which date.

   (i)      On 16.1.1979    Society is opened up to all.
   (ii)     On 20.1.1979, 32 members enrolled.
   (iii)    On 30.1.1979, 66 members enrolled and 14 resigned.
   (iv)     On 5.2.1979, 18 members resigned and 19 enrolled.
   (v)      On  10.2.1979,  7  resignations  accepted and  R.   P.  Sharma,

Anurag and Ved Prakash were elected as office bearers.

(vi) On 15.2.1979, the society under the chairmanship of R. P. Sharma resolves that "National Building Organization Employees Coop. G/H Society Ltd. shuold not be wound up and the appeal against these orders of liquidation before RCS".

(vii) Immediately thereafter there are minutes of AGM meeting in this register dated 25.12.2002.

At the cost of reiteration, I mention that the society was wound up vide order dated 14.2.1979. It had also received the copy of this order. If on the very next date i.e. on 15.2.1979 it had decided to appeal against the winding up order and had already raised its membership more than 50 as clearly reflected from the above noted minutes, how it remained absolutely non functional for more that 20 years and woke up on 25.12.2002. The dates of above noted 107 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 proceedings have been quoted by me with a view to show that before winding up order dated 14.2.1979, the society had enrolled more than 50 members as per the fake proceedings and on very next day i.e. on 15.2.1979, the society under the chairmanship of R. P. Sharma is shown to have resolved to challenge the winding up order. But thereafter there is nothing on these proceedings register nor in the files which are various volumes of D2 maintained in the office of Registrar. I may point out that despite such a large number of resignations and enrollments and resolving the amendment of the bye laws in the year 1979 within a short period of about one month before the winding up order dated 14.2.1979 (as is clear from the dates of the fake proceedings mentioned above), dealing clerk did not note that the society is not interacting with the office of RCS at all, which it was required to do as per various rules and directives issued from time to time. If the society had become so active when the winding up order was being passed, it would have interacted with the RCS office as soon as its membership muster the strength of 50 or more. But dealing clerk did not write this fact in his noting despite having perused the original records brought by the so called society and the records which were available in the RCS office.

Ld. Public Prosecutor argues that the dishonest intention can be seen from the fact that the dealing clerk was posted in South West 108 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Zone but the file should have been available in New Delhi Zone because Nirman Bhawan fell in the jurisdiction of New Delhi Zone and not in South West Zone. It is argued by Public Prosecution that dealing clerk must explain as to how he was able to take up the file which did not pertain to his zone. I am not inclined to accept this argument of Ld. Public Prosecutor. Specific should have been brought on record to show that Nirman Bhawan fell in the jurisdiction of New Delhi Zone. In absence of such evidence, I am not inclined to take this circumstance against this accused. None the less, the discussion above amply proves that the dealing clerk was having the knowledge of the fraud involved and therefore he dishonestly concealed very material facts by not mentioning that there is something very seriously wrong in the documents produced by R. P. Sharma. Notings also proves that R. P. Sharma (i.e. P. N. Sharma) was in direct contact with this accused.

J. S. SHARMA (A2) It is argued by Ld. Cousnel Sh. Abhishek Prasad, adv. that accused J. S. Sharma was from DANICS cadre and at the time of filing charge sheet he was in service. As per prosecution the sanction against J. S. Sharma was obtained, which is Ex.PW46/A. As per statement of PW46 Sh. Rajneesh Trigal sanction against accused J. S. Sharma was accorded by Dr. K. S. Sugathan, Addl. Secretary and he 109 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 had merely conveyed the sanction order.

It is argued by Ld. Defence Counsel that from his statement and sanction order Ex.PW46/A following things emerge:

(a)         PW46 is not the sanctioning authority.
(b)         The person who accorded sanction was Dr. K. S. Sugathan.

However his name nowhere appears in the entire sanction order.

It is submitted that the fact that the sanction was accorded by Dr. K. S. Sugathan could not be established by any means because in 6 page sanction order, the name of the sanctioning authority has not been mentioned which indicates that the said order is a draft prepared by CBI which was later merely got signed by PW46 without application of mind.

Ld. Defence Counsel argues that PW46 in his cross examination had although claimed that he had processed the file, and he is aware of the facts on which the sanction was granted. However his claim is entirely wrong as is clear from his deposition in the cross examination where he had stated that "some witnesses had alleged that they had processed the file on the directions of the accused as well as they had to share illegal gratification with the present accused received from other accused for processing the case. It is wrong to suggest that no such witness has alleged about sharing the gratification. It is wrong to suggest that there is nothing on 110 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 record about the receipt of any gratification amount or of sharing the same".

Ld. Defence Counsel argues that from the above facts, it is amply clear that PW46 is completely unaware of the case against accused J. S. Sharma. Therefore, it is argued that the prosecution had miserably failed to prove the sanction against accused J. S. Sharma and on this sole ground he is liable to be acquitted by this Court.

Ld. Defence Counsel argues that it has been reiterated in numerous judgments that sanction is not just a formality but a pious obligation and the sanction must be granted after due application of mind. The burden lies on the prosecution to prove that a valid sanction had been granted by the prosecution. Ld. Defence Counsel referred to Mohd. Iqbal Ahmad Vs. State and State of Karnataka Vs. Ameer Jaan in his support.

Regarding question of sanction, I would say that all the points raised by Ld. Counsel for accused were also under the consideration of Hon'ble High Court of Delhi in Crl.M.C. 92/2012 titled as Hawa Singh Vs. CBI decided on 7.5.2013. Hon'ble Ms Justice Pratibha Rani had discussed Mohd. Iqbal Ahmad Vs. State A.P. and State of Karnataka Vs. Ameer Jaan (which are the authorities referred to by Ld. Counsel for accused as above) and thereafter relied upon State of Bihar Vs. P. P. Sharma AIR 1991 SC 111 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 1260 wherein Hon'ble Supreme Court held that order of sanction is only an administrative act. It also opined that under secretary, who issued the sanction order, is duly authorized under Government of India (Transaction of Business Rules) to issue the sanction order and non examination of sanctioning authority by prosecution does not have the effect of declaring the sanction to be invalid. Same is the case with Rajneesh Tingal (PW46). I have seen the sanction order Ex.PW46/A vide which accused J. S. Sharma was sanctioned to prosecuted. It is a reasoned order. In state of Rajasthan Vs. Tara Chand Jain 1973 SC 2131, it was held by Hon'ble Supreme Court that if order of sanctioning authority is speaking order, the matter ends there. But if it is not a speaking order, the prosecution will have to produce the independent witness to show as to what material was considered while granting the sanction and to show that the sanction was accorded after the relevant facts were placed before the sanctioning authority (para 17 of the judgement). I also do not find any substance in the arguments that in cross examination PW46 has stated that as per the material produced by CBI, the accused had taken/share illegal gratification. I am of the opinion that even if this fact is mentioned in the sanction order, this court cannot go into the question as to how the sanctioning authority formed this opinion. At the cost of repetition, I would say that an act of grant of sanction is 112 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 only an administrative act and the only requirement is as to whether the sanctioning authority has mentioned reasons for according the sanction in its order or not. Hence, I hold the sanction to be a proper sanction.

I also do not find any substance in the submissions that he being AR had merely forwarded the file to the Registrar and that it was the duty of the dealing clerk to verify the documents. Ld. Counsel for accused J. S. Sharma argued that dealing clerk cannot throw his responsibility on the Registrar, who is a quite high officer and is not supposed to do the verification work. It is argued that the detailed note of the dealing clerk dated 20.3.2003 starts with the mentioning of the fact that he had verified the records. It is argued that it would disrupt the entire administrative functioning if the same work is repeated by a higher officer. It is argued by Ld. Defence Counsel that his noting that "the freeze list of the society is 114 and all the documents are checked and verified" means that the same had been checked and verified by the dealing clerk. Ld. Defence Counsel further argues that accused J. S. Sharma has simply written a noting for orders of the Registrar and has not recommended the revival.

The arguments of Ld. Defence Counsel is not acceptable to me. Whereas dealing clerk has only written that original record has been verified with reference to the documents furnished, the 113 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Assistant Registrar has given a seal of authenticity by writing that all the documents have been checked and verified. The Assistant Registrar is a higher officer than the dealing clerk and therefore has a higher level of responsibility. The society was coming after about 23 years from the winding up order. It had raised its membership from 35 to 114 way back in the year 1979. In his hand written note dated 20.3.2003, J. S. Sharma has referred to page no.14/N to 20/N and has mentioned that the freeze list of the society is 114 and all the documents are checked and verified. This is a noting of a responsible officer and by writing it, he has owned whatever has been written by dealing clerk. In the note dated 6.3.2003 as well as in the note of dealing clerk dated 20.3.2003, though not written specifically but is clear from the dates mentioned in the same, that after raising the membership to 114 from 35 just a few days before the winding up order, the society became dormant for 23 years. The winding up order Ex.PW50/A2 was passed by Ashok Bakshi on 14.2.1979 and its copy was also sent to National Building Organization CGHS. The file D2 VolumeIII in which this winding up order is placed, is also having the acknowledgment by the society, which was received back by the office of RCS. This file i.e. D2 VolumeIII has been collectively proved as Ex.PW50/PX and is full of the correspondence between society and the RCS, which show that the society was wound up because it was 114 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 unable to muster 50 members. Within two days of the winding up order, the membership rose to 114 members in the year 1979. The only explanation that accused J. S. Sharma could not note that the society which had shown such alacrity and acted in such a great speed did not move an inch to approach the office of RCS for 23 years and pursue the matter for allotment of land. I may mention that notings of the file D2 Volume4 show that the society was very much desirous of getting the land but it could not raise its membership to 50 (referred to noting dated 12.12.1978 Ex.PW50/A). The only explanation is that accused J. S. Sharma wrote with dishonest intention that the records have been checked and verified. I would like to refer here that testimony of PW50 Ashok Bakshi, who has testified that after the dealing assistant has put up a note, the Assistant Registrar would thoroughly examine it. Therefore J.S. Sharma, the then AR, was required to examine the note and records thoroughly, which he did as per his note in his own hand writing that records are checked and verified. Despite having seen the records, J. S. Sharma does not raise a whisper as to how the society, which could not muster 50 members despite lot of efforts by the society, was able to enroll 114 members within a few days. I may point out that the winding up order dated 14.2.1979 was passed on the report placed at page 3/C in RCS file D2 VolumeIII, which is collectively exhibited as Ex.PW50/PX. In this 115 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 report dated 7.2.1979, Inspector D. K. Sharma had stated that society had only 35 members and could not enroll 50 members and that the President of the society informed that the members of the society were not interested in running the society because they are unable to enroll further members. Whereas on 10.2.1979, i.e. just 3 days after the said report, R. P. Sharma, Anurag and Ved Prakash are being elected as the office bearers of the society. Accused J. S. Sharma has been unable to explain as to if he had checked and verified the documents, why he did not mention in his note that 114 members had been enrolled prior to the winding up order, which is contrary to the records maintained in the RCS office i.e. D2 volumeII and D2 volumeIV etc. (as the report dated 7.2.1979 is stating that the society could not muster 50 members and the members of the society were not interested in running the society). I am not inclined to accept that such a big fraud happening after about 20 years from the winding up of the society escaped the notice of Assistant Registrar who happens to be a seasoned and responsible officer. This conduct shows that he was clearly acting with dishonest intention to authenticate 114 members for the purpose that the persons representing the fake members are allotted the land as per their seniority in accordance with the date of registration of the society. I may point out that the signatures of J. S. Sharma are available on each page of the freeze list placed on page 116 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 23/C to page 26/C of D2 volumeIV Ex.PW43/X and signatures of 'Ram Prakash' and 'Anurag' purporting to be the President and Secretary of the Kevalya Vihar CGHS are also present on each page. As per GEQD report, the signatures 'Ram Prakash' and 'Anurag' have been written by accused P. N. Sharma, which shows that accused J. S. Sharma knew that accused P. N. Sharma was forging the signatures of two persons at the same time. In fact at the last page, the fake office bearers as well as J. S. Sharma have also certified the correctness of the members mentioned in the said list. It is surprising that neither J. S. Sharma sought any proof of identification from the office bearers nor randomly asked for any proof in respect of the other members of the society named in this list. Narayan Diwakar also did not pay any attention to it despite the fact that it was their duty to authenticate the list of the members while sending it the same to DDA. J. S. Sharma, thus, was clearly acting with dishonest intention in collusion with P. N. Sharma with an objective to get land for the revived society having 114 fake members.

NARAYAN DIWAKAR (A1) Dr. Sushil Kumar Gupta, adv. argues that as per charge sheet, the society was wound up on 14.2.1979. It is argued that this is not a correct averment and that in fact on this date the winding up proceedings were initiated. Ld. Defence Counsel argues that the 117 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 Registrar had cancelled the winding up order in exercise of the powers under Section 63(3) of DCS Act. Ld. Defence Counsel argues that Section 66(3) of DCS Act provides for filing of an appeal against winding up order made by Registrar under Section 63 of DCS Act, which means that when Registrar passes an order of winding up and when he passes an order of cancellation the winding up order, he acts under judicial/quasi judicial powers. My attention has been drawn by Ld. Defence Counsel to Section 6 of Indian Penal Code as well as to illustration (b) of it, which is reproduced as under :

6. Definition in the Code to be understood subject to exceptions. Throughout this Code every definition of an offence, every penal provision, and every illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the Chapter entitled "General Exceptions", though those exceptions are not repeated in such definition, penal provision, or illustration.

(a)..........

(b) A, a policeofficer, without warrant, apprehends Z, who has committed murder. Here A is not guilty of the offence of wrongful confinement; for he was bound by law to apprehend Z and therefore the case falls within the general exception which provides that "nothing is an offence which is done by a person who is bound by law to do it".

118

CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 It is argued that once a society is not liquidated within three years, the society automatically revives and winding up order looses its steam. Therefore, it is argued that Narayan Diwakar had no option but to revive such a society. It is argued that in none of the cases, Narayan Diwakar had rejected application for revival as he was bound to revive the society by the mandate of law and therefore Section 6 of IPC comes to the protection of Narayan Diwakar, as, has been clarified in illustration (b) of this Section. By further elaborating this issue, Ld. Defence Counsel has drawn my attention Rule 105 of DCS Act 1972, which is reproduced as under :

105. Termination of Liquidation Proceedings The winding up proceedings of a society shall be closed within one year from the date of the order of the winding up, unless the period is extended by the Registrar.

Provided that the Registrar shall not grant any extension for a period exceeding six months at a time and three years in the aggregate, and shall immediately after the expiry of three years from the date of the order for winding up of the society, deem, that the liquidation proceedings have been terminated if there are no central amounts due to the Governments or the Financing Bank by the society and pass an order terminating the liquidation proceedings.

119

CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 It is submitted that as per the rules the winding up proceedings shall be closed within one year from the order of winding up unless the period is extended by the Registrar. It is submitted that the Registrar can extend this period for three years and shall immediately after the expiry of three years from the date of the order of winding up society, deem that liquidation proceedings have been terminated and pass an order terminating the liquidation proceedings.

Thus not only Registrar was within his rights to cancel the winding up order but it would be more appropriate to say that he was bound by the law quoted above to cancel the winding up order and revive the society.

Stressing the point that the Narayan Diwakar was acting in judicial capacity, Ld. Defence Counsel has drawn my attention to Section 77, 78 and 79 IPC, which are reproduced as under :

77. Act of Judge when acting judicially. Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.

78. Act done pursuant to the judgment or order of Court - Nothing which is done in pursuance of, or which is warranted by the 120 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 judgment or order of, aCourt of Justice; if done whilst such judgment or order remains in force, is an offence, notwithstanding the Court may have had no jurisdiction to pass such judgment or order, provided the person doing the act in good faith believes that the Court had such jurisdiction.

79. Act done by a person justified, or by mistake of fact believing himself justified, by law. Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.

My attention has also been drawn to Section 76(j) of DCS Act, which provides appeal against the winding order under Section 63 of DCS Act. Ld. Defence Counsel has drawn my attention to Section 19 IPC, which defines 'judge'. I reproduce the same as under :

19. "Judge". The word "Judge" denotes not only every person who is officially designatred as a Judge, but also every persons, who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or 121 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 who is one of a body of persons, which body of persons is empowered by law to give such a judgment.

(a) A Collector exercising jurisdiction in a suit under Act 10 of 1859, is a Judge.

(b) A Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment, with or without appeal, is a Judge.

(c) A member of a panchayat which has power, under Regulation VII, 1816, of the Madras Code, to try and determine suits, is a Judge.

(d) A Magistrate exercising jurisdiction in respect of a charge on which he has power only to commit for trial to another Court, is not a Judge.

I have considered the submissions of Dr. Sushil Kumar Gupta, adv. for accused and I find no substance in this submission. To say that while exercising the powers under Section 63(3) of DCS Act in cancelling of winding up order of a society, the Registrar was acting judicially has not been accepted by Delhi High Court in Narayan Diwakar Vs CBI 129 (2006) DLT decided on 7.3.2006. This petition was filed by this accused raising same pleas and claiming the protection available to a judge under Section 19 IPC and Section 2 of Judges (Protection) Act 1985. Hon'ble Mr. Justice R. C. Jain of Delhi 122 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 High Court rejected the said pleas of this accused and opined as under :

"15. This Court on a consideration of the matter and more particularly having regard to the provisions of the Delhi Cooperative Societies Act, 1972 and Judges (Protection) Act, 1985, is of the considered opinion that the petitioner while exercising and discharging functions of the Act and more particularly the powers under Section 63(3) of the Act, cannot be deemed to be a 'Judge' within the meaning of Section 2 of the Judges (Protection) Act, 1985 and, consequently, he cannot claim any protection against prosecution or other legal proceedings. So far as the immunity available to the Registrar and other officers against prosecution etc. under Section 95 of the Act is concerned, suffice it would be to observe that the use of the expression 'good faith' in the said section clearly brings out the mind of the Legislature that the protection granted to the Registrar and other officers for any acts done by them in the discharge or their official duties is not absolute and is circumscribed by the essential condition that the action had been taken and power had been exercised by such officers in good faith. Converse of good faith is 'bad faith' or mala fide and, therefore, if a question arises as to whether the action taken by the Registrar Cooperative Societies or any other officer was in bad faith, the immunity envisaged by Section 95 of the Act will not be available and the question can be gone into by any competent authority including any statutory investigating agency(s) like CBI. In the opinion of this Court, the petitioner cannot be allowed to take refuge under the said provisions and to scuttle the investigation into the cases having large ramifications in the society.

Thus, it is clear that he cannot avail the protection of being a judge while passing the revival order, if prosecution is able to prove 'bad faith' on his part.

Now I would like to reproduce the revival order passed by this accused.

IN THE COURT OF REGISTRAR COOPERATIVE SOCIETIES GOVT. OF N.C.T. OF DELHI OLD COURT'S BUILDING, PARLIAMENT STREET, NEW DELHI110001. Case No.RCS/40/03/71/2716 to 22 Dated : March, 26, 2003 123 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 ORDER Whereas the NATIONAL BUILDING ORGANISATION EMPLOYEES COOP. GROUP HOUSING SOCIETY LTD. (NOW KEVALYA VIHAR COOP. GROUP HOUSING SOCIETY LTD.) (Regd. No.71/GH), b/8/6146, Vasant Kunj, New Delhi was issued a Show Cause Notice no. F.47(71)/78Coop./H/2544 dated 17378 u/s 63(2) of Delhi Cooperative Societies Act, 1972.

And whereas, the Society failed to respond to the above mentioned Show Cause Notices u/s 63 (2) (b) of the DCS Act, 1972, the society was put under liquidation vide this office order No.F.46/47/71/78/H/Coop../85964 dated 14279.

and whereas, the society vide its letter dated 25022003, requested for revival of the society u/s 63(3) of the D.C.S. Act, 1972 and submitted the following clarifications:

1) An extra ordinary General Body meeting was held on 25122002, wherein it was decided to revive the Society and verify the list of members for onward transmission to DDA for allotment of land.

2) the alleged irregularities have been removed to facilitate grant in favour of the Society.

And whereas, the Society has further requested the Registrar Cooperative Societies for withdrawal of winding up order dated 140279.

And whereas, Sh. R.P. Sharma, Secretary of the Society appeared before this court on the dates fixed. He stated on oath that the last election to M.C. Was held on 100279 and last audit is completed upto 30061973. It was also stated that list of 114 members as on date has been drawn up in the prescribed proforma on the basis of the record of the Society and had also been submitted for verification. As regards Audit, it was mentioned that all the pending accounts are ready for Audit and filed photocopies of the unaudited accounts of the society till 31032002. The President and Secretary of the society made oral commitment to fulfill all the statutory liabilities in future and also filed affidavits dated 11032003 to this effect. They were directed to file all the original records before the Asstt. Registrar concerned for verification.

And whereas, it was reported by the Asstt. Registrar (S/W) that the original records were produced by the society and were got verified. The society has submitted the list of 114 members as on dated and unaudited accounts till the period ending 31032002. The Society had conducted the last election to M.C. Of the Society on 10021979. The 124 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 application forms, share money receipt, etc. of members have also been verified from the original records. Fresh affidavits in respect of all the 114 members of the society have also been filed. It has been mentioned in the report of Asstt. Registrar (S/W) that the society was put under liquidation vide order dated 14021979. the clause 5 of the registered bye laws of the Society provides that the membership is restricted to the staff of the National Building Organisation, New Delhi and since the Society could not get land because the freeze strength of the Society was not as per the requirement of the DDA, i.e., 50 members, the Society in its 4th AGBM held on 1121976 resolved to adopt the model byelaws of the Society and further in its GBM held on 16179 resolved that the membership of the Society be opened to all applicants irrespective of their caste, creed, area and religion and raised its strength of members to 114. The society has tried to remove the shortcomings on the basis of which the society was put under liquidation. The M.C. of the society was continuously managing the affairs of the society and was instrumental in its effect to revive the society. Therefore, in absence of finalization of liquidation proceedings, action initiated u/s 63 of D.C.s. Act, 1972 has become a nullity.

I have gone through the submissions made by the President and Secretary of the society, affidavits filed by the President and Secretary of the society and the report submitted by the Asstt. Registrar (S/W).

In view of the facts and circumstances as stated above and taking into consideration that no final liquidation order has been passed. I, N. Diwakar, Registrar Cooperative Societies, Govt. of NCT of Delhi, hereby cancel the winding up order dated 14021979 issued to the NATIONAL BUILDING ORGANISATION EMPLOYEES COOP. GROUP HOUSING SOCIETY LTD. (NOW KEVALYA VIHAR COOP. GROUP HOUSING SOCIETY LTD.) (Regd. No.71/GH), in exercise of the powers vested in me u/s 63(3) of the Delhi Cooperative Societies Act, 1972 with immediate effect, Consequently, the NATIONAL BUILDING ORGANISATION EMPLOYEES COOP. GROUP HOUSING SOCIETY LTD. (NOW KEVALYA VIHAR COOP. GROUP HOUSING SOCIETY LTD.) (regd. No.71/GH), B/8/6164, Vasant Kunj, New Delhi is hereby revived with immediate effect subject to the condition that the pending Audit shall be got completed within two months time and the final list of the members sent to DDA.

In addition to above, keeping in view the principle of natural justice and 125 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 cooperative spirit, I hereby appoint Sh. M. Kandaswamy, Gr.III of this department as Election Officer to conduct the election of the Managing Committee of the society within two months of the issue of this order. The President/Secretary of the society are directed to cooperate with the Election Officer so appointed, failing which action will be initiated against the society.

Announced, (N. DIWAKAR) REGISTRAR COOP. SOCIETIES Copy to : No. RCS/40/03/71/271622 Dated 16303

1. The President/Secretary, National Building Organisation employees Coop. Group Housing Society Ltd. (Now Kevalya Viahr Coop. Group Housing Society ltd.)

2. Joint Registrar. (Legal Br.)

3. Asstt. Registrar (S/W)

4. Asstt. Registrar (Audit)

5. Sh. M. Kandaswamy, Gr.III, Election Officer

6. Dy. Director (GH), INA, Vikas Sadan, New Delhi.

7. Order file.

(N. DIWAKAR) REGISTRAR COOP. SOCIETIES The above said revival order and the relevant notings would have to be seen to find out as to whether there was any dishonest intention of accused Narayan Diwakar in passing the said order. The further arguments of accused Narayan Diwakar are being summed up as under : "a. There is no. connection of the documents filed by the society with the passing of the order of cancellation of windingup (revival) of the society.

126

CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 In the present case an application was moved by the Secretary of the society on 25/02/2003 before the Office of the RCS for revival of the Society along with minutes of Extra Ordinary General Body Meeting, annual General Body Meeting, Agenda Note, amended Byelaws.

Subsequently when the file was marked to the Dealing Assistant for making verification and for checking the records he had submitted the records of the Society consisting copy of the proceedings of resignation and enrollment of members, copies of resignations, copy of the application of members, 114 original affidavits and list of 114 members of the society. The same was processed by the subordinate staff.

Since in the present case the liquidation proceedings were terminated way back in 1982 hence these documents filed by the Society has no bearing on the passing of the order of cancellation of the winding up order dated 14/02/1979 and the only action which could have been taken by the Registrar in such a situation was cancellation of the winding up order.

b. There is no connection of the inspection report with the passing of the order of cancellation of winding up order of the society dated 14/02/1979.

After receiving the records of the society the same were checked and verified by the subordinate staff. As mentioned above, there is no connection of the inspection report/verification with the passing of the order of cancellation of winding up order of the society dated 14/02/1979. Even in the absence of such a report the Registrar was bound to cancel the winding up order dated 14/02/1979.

c. The society though was dormant for more than two decades i.e. 24 years, still when an application is moved for cancellation of the winding up order, the only action which could have been taken by the RCS was to pass an order for the cancellation of the winding up. The time factor within which the application could have been moved is of no relevance and the RCS on receiving such application had to take steps in accordance with the law laid down by the Hon'ble High Court in the case of Vikas 127 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 CGHS Vs. RCS & ors.

A brief perusal of document D2 (Vol.4) which is the file of the RCS containing the noting portion of the file vide which said society was dealt by the Office of the RCS. This document shows the notings from 1971 to 1979 pertaining to the Registration of the Society and its subsequent status (the last noting is 10/01/1979 and a signature dated 13/02/1979 which is struck off) and thereafter the notings start from 06/03/2003. there is a gap of 24 years before the application was moved for cancellation of the winding up order dated 14/02/1979 and the same was processed by way of a noting in this file on 06/03/2003. the accused herein could not be held liable and responsible for the acts of the predecessor wherein this file was not maintained in proper order. When an application comes to him for revival during his tenure he has to deal the same as per the provisions of law i.e. section 63(3) of the DCS Act 1972. A bare perusal of the same shows that as per the provision there is no time limit when such an application can be dealt with. Even at the cost of repetition the Provision of section 63(3) is quoted for a better understanding of the acts performed by the present accused.

"The registrar may cancel an order for the winding up of a co operative society, at any time, in any case where, in his opinion, the society should continue to exist."

Thus the provision shows that the application can be dealt with by the RCS at any time. Hence an attempt on the part of the prosecution to draw an inference of malafide against the accused on this ground is without any substance. Further, in the present case there is no allegation pertaining to the missing of records from the office of the RCS. The present accused for the first time dealt with the file on 07/03/2003 and he is not aware as to what had happened prior to his dealing with the file. He has dealt the application as per the laid down provisions of law and the directions given to the Registrar Cooperative Societies by the Division Bench of the Hon'ble High Court of Delhi in the case titled Vikas CGHS. This allegation of the CBI is not sustainable because the statute i.e. DCS Act, 1972 did not provide for a time limitation. As far as the RCS (accusedherein) is concerned, it was his statutory 128 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 duty to entertain the application. It was for the said reason that the accusedherein had to refer the matter to the concerned zone in order to have the facts ascertained. Therefore no malafide can be inferred when the accused has dealt with the said application after 24 years. Hence the attempt made by the prosecution to draw such an inference of malafide on the part of the accused herein is without any basis.

Further in a case where the office of the Registrar has to deal with the order for winding up there are two issues as the notings in the file suggests

a) the micro issues

b) the macro issues the micro issues are like verification/scrutiny of the records, checking of the enrollments and resignation, seeing that the elections and audits are complete and all these have to be dealt with by the subordinate staff whereas as far as the role of the Registrar is concerned he has to look into the macro issue i.e. whether the society should continue to exist or not. A bare perusal of the notings as well as the order passed by the Registrar shows that the only focus which the registrar had at the time of passing the order of revival was whether the society should continue to exist or not. The order dated 26/03/2003 passed by the accused while working as the Registrar also shows this aspect. The last para of the order dated 26/03/2003 shows that the Registrar was conscious that for the continuation of the society in future the provisions of the Delhi Cooperative Society Act has to be complied with and that is why he mentions that the order passed by him is a conditional order so that the society is able to carry on its statutory functions seriously."

I have carefully considered the submissions and I disagree with the Ld. Counsel for accused Narayan Diwakar. I have already reproduced the revival order. In the revival order dated 26.3.2003, accused Narayan Diwakar has given the details as to what has been 129 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 reported by Assistant Registrar (S/W). Accused Narayan Diwakar thereafter writes "I have gone through the submissions made by the President and the Secretary of the society, affidavits filed by the President and the Secretary of the society and the report submitted by Assistant Registrar (S/W)." The narration of the contents of the report of AR and specific mention that he had gone through the said report before passing the relevant order of canceling the winding up order shows that the consideration of the report of Assistant Registrar was an essential factor, which was to be considered by accused Narayan Diwakar before passing the order. To say that by verdict of Vikas CGHS case, he was required to mechanically pass the revival order of the societies, does not lie in the mouth of the accused because in that case there was no reason for discussing the report of the Assistant Registrar. The copy of judgement in Vikas CGHS has been filed by accused Narayan Diwakar and I reproduced the last paragraph of the same.

"There is an application (C.M. 3058/86) on behalf of Shri Nirmal singh and Shri Pitam singh for being impleaded as parties in the petition. The contention is that for the last number of years no annual general meeting has been held for electing members of the committee. The petitioner has no objection to the holding of the annual general meeting for the election of the members of the 130 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 committee. We direct that the Registrar shall within three months make arrangements for the holding of the elections and the elections shall be held under the supervision of the Registrar or his nominee. Another contention raised is that the petitioner society have removed 60 persons from the membership and made 42 new members. It is contended that before an election is held it should be decided as to who are the members of the society. We leave this to the Registrar to decide as to who are the legally admitted members of the petitioner society. If any member is aggrieved against his removal from the membership of the society or against the induction of a new member to the society he can take appropriate steps in accordance with law."

The above mentioned part shows that High Court has left it for the Registrar to decide as to who are the legally admitted members of the society. In other words, High Court was of the view that if the liquidation proceedings have not been terminated as per Rule 105 of DCS Rules, the society still survives because winding up order has not been taken to its logical conclusion by completely liquidating the society, but in respect of verifying the members of the society, it was held that it was purely within the domain of the Registrar. I may repeat that this court is not disputing the powers of the Registrar, as it cannot, being not an appellate authority and therefore cannot and 131 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 should not question the legality of the order. The simple issue before this court is as to whether at the time of the passing of the revival order and approving/sending the list of 114 members to DDA for allotment of land, the accused had the knowledge that fraud is being played or documents are forged or the 114 members were fake. Therefore, real issue is not the revival order and powers to do so by the Registrar, rather the issue is the intention involved in approval of freeze list of 114 fake members. I have already held that as per dicta of Runu Ghosh case such intention has to be seen from the note sheet and order available on file.

One argument has been raised that after 13.2.1979, there is gap of 24 years when the application was moved for cancellation of winding up order dated 14.9.1979. It is argued that Narayan Diwakar cannot held liable for the acts of predecessor in whose period this file was not maintained in proper order. This argument does not have any basis. Accused wants to say that some interactions between the society and the RCS must have taken place during the gap of 23/24 years but same was not put on the file due to mismanagement in the office. This argument is falsified by the fact that the society itself has not produced any document before the Registrar to show that it had been trying to get the society revived by writing letters etc. during those 24 years. Hence, this argument cannot be accepted. Moreover, 132 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 if this argument is accepted, it means that Narayan Diwakar had perused the department's files before passing the revival order and found a gap of 24 years but was of the opinion that though some proceedings have been done during those 24 years but the same have not come on record due to poor maintenance of the files. If that was the situation, Narayan Diwakar must have asked the society as to where is the proof that soon after the winding up order, the society made any effort to get the winding up order for 24 years. If, he had seen the files (i.e. D2), he would have to answer as to how he was unable to see that the society had been trying hard to increase its members from 35 to 50 but failed in that attempt and in the inspection report dated 7.2.1979 (which was the basis for winding up the society), office bearers of the society had specifically stated that they were no more interested in running the society. In that case, he would fall in the same category as Rakesh Kumar Sharma, the dealing assistant, and J. S. Sharma, AR. I would presume that Narayan Diwkar did not see the file and had only gone through the note of the Assistant Registrar dated 20.3.2003, as mentioned in the revival order.

In the revival order (Ext.PW43/X8), the Registrar has given the gist of the report of the Assistant Registrar and has mentioned the following facts:

(a) The society was put under liquidation vide order dt.

133

CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 14.02.1979 i.e. the winding up order.

(b) On 16.01.1979 GBM of the society had resolved that membership of the society be opened to all irrespective of their caste, creed, area and religion and raised its strength of members to 114.

The aforesaid dates are very important. On 14.02.1979, the society was put under liquidation and just about one month ago, the society raised its strength to 114 members. This is such a glaring fact that just a few days before the winding up of the society, the society which was unable to muster even 50 members (and which was the cause of winding up of the same), has suddenly raised 114 members and thereafter kept mum and remained dormant for 23 years. This is not the "micro issue" as argued by Ld. Defence Counsel. At the cost of repetition I would say that as per the judgment of High Court in Vikas CGHS case, the society was not yet dead for want of completion of liquidation proceedings. But, winding up order still stood. Hence, there was requirement for passing of an order u/s 63(3) of DCS Act, 1972. I would reproduce the section as under:

"(3) The Registrar may cancel an order for the winding up of a cooperative society, at any time, in any case where, in his opinion, the society should continue to exist."

The perusal of this provision shows that although the Registrar has the power to cancel winding up order at any time, but, 134 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 there should be some reason for it. This is why the records are directed to be verified. The purpose of verification is the verification of genuineness of its members. In Vikas CGHS case, Hon'ble High Court has not curtailed this duty of the Registrar to verify the members. In Kaveri CGHS case, relevant part of which have already been reproduced, it has been held that when a Registrar approves the list of members, it means that Registrar recognises the correctness of the list as filed by the society. This important responsibility was being discharged in a clever manner by just accepting the affidavits of the President and the Secretary and the members. As per the affidavit of Anurag Ext.PW44/A (which interestingly has been signed by Ram Prakash as Deponent at the end) in which the names of the members have been written. Registrar in his revival order dt. 26.03.2003 as mentioned about this affidavit, but, there is no effort on his behalf to ask any identity proof of the President and Secretary and all other members of the society. I have already discussed that R.P. Sharma appearing before Narayan Diwakar is none other than accused P.N. Sharma. As already discussed, P.N. Sharma has forged all the proceeding registers, all the affidavits, membership register, the resignation letters, the enrollment letters and other documents, which are so voluminous that a clear inference arises that he had an assurance that whatever he would file would be 135 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 approved. It is argued by Ld. Defence Counsel for accused Narayan Diwakar that when the records have been verified first by the dealing clerk Rakesh Kumar Sharma and thereafter by J.S. Sharma, the Asstt. Registrar, who has clearly certified that "freeze list of the society is 114 and all the documents are checked and verified," Narayan Diwakar had no reason to disbelieve both of them and that is why he passed revival order unhesitatingly. I am of the opinion that if there is nothing on record to show dishonest intention on part of Narayan Diwakar, this submission would be acceptable. However, when a clear evidence indicate dishonest intention in passing the revival order and approving the list of members is seen from the order and the proceedings which I have already discussed, this very fact of acting on the report of the Assistant Registrar and Dealing Clerk is an indication that all of them were acting in unison towards a definite goal.

Sh. Amrit Pal Singh, Ld. Public Prosecutor has drawn my attention that R.P. Sharma has been shown by Narayan Diwakar as Secretary in the noting dt. 11.03.2003 (inadvertently written as 11.03.2002) and a noting dt. 18.03.2003, but, in the order dt. 20.03.2003 (inadvertently written as 20.03.2002), he has been shown as the President of the society. To my mind, this may be the only inadvertent and clerical mistake as it had happened in respect of a few dates in the above stated notings. However, how the dishonesty is 136 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 reflected in sending the list of 114 members to DDA can be seen from the fact that Narayan Diwakar ordered the revival of the society subject to condition of pending audit to be completed and election conducted within two months of the issue of the order. P.K. Thirwani was appointed as auditor and I would discuss, while considering his role later on, as to how his entire report was fake. Even the election report was fake. Vide revival order dt. 26.03.2003, Narayan Diwakar appointed M.Kandaswami Grade III of his department as election officer to conduct election of the managing committee of the society. M.Kandaswami has expired but the report submitted by him is a part of the trial and has to be considered. File Ext.PW29/PX contains the papers in respect of the elections. Letter Ext.PW43/A2 addressed to the President (copy of which was sent to AR (SW)), the election officer writes that election of the management committee was held on 11.05.2003 at the premises of the society i.e. B/48/6146, Vasant Kunj, New Delhi. PW42 Sarfaraj Ahmad, Ex.M.P. resides here and has testified that no meeting of the society in question was held at his premises. Thus, the election report is absolutely fake. This shows as to how the election officer appointed by Narayan Diwakar is creating a fake proceedings. This indicates that not only all his subordinates had closed eyes to the glaring facts in the notings but also, whosoever (i.e. auditor & election officer) was appointed by Narayan Diwakar also 137 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 filed fake reports. This shows that the dealing clerk, AR, auditor, election officer all were acting under the instruction of Narayan Diwakar in approval/authenticating of the fake members, fake names, fake office bearers and fake address of the society. P. K. THIRWANI (A5) Sh. S. K. Bhatnagar, adv. argues that it is not mandatory that the auditor should go to the registered office of the society to conduct the audit. It is therefore argued that since there was a heavy burden of work, the auditor as per practice used to call the records at its office. My attention has been drawn to the notings in D2 Volume4 of the RCS office, which show that all the documents and records of the society had been verified by the dealing clerk and the Assistant Registrar and the society had been revived, therefore accused P. K. Thirwani had no knowledge that the society and its office bearers are fake. It is further argued by Ld. Defence Counsel that as per practice the office bearers of the society furnished the documents, which were already signed by them and thereafter the auditor had to put his signatures on those audit documents. That is why accused had no knowledge that the fake signatures of the Secretary and Treasurer have been placed by accused P. N. Sharma.

Ld. Defence Counsel further argues that accused cannot be made part of the conspiracy because conspiracy ended with the revival 138 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 order, whereas the audit was conducted after about two months from the revival. I disagree with the submissions of Ld. Defence Counsel. As per Rule 84(3) of DCS Rules 1973, unless the Registrar directs otherwise, the audit of a cooperative society shall be conducted in registered office of the society and as per Rule 84(4), previous intimation shall be given to the society before audit is commenced. PW31 Sh. Bhupeinder Singh, Assistant Registrar in the office of RCS and PW55 Smt. Aruna Chaudhary, Assistant Registrar Audit were examined by the prosecution to prove the procedures and practices of the office of RCS. PW51 has testified that audit of the society should be conducted in the office of the society. However PW55 was more specific and testified that auditor is duty bound to visit the office of the society for the purpose of conducting audit. The audit documents are contained in file D10, which is collectively exhibited as Ex.PW54/X and all these documents show the address of the society as B86146, Vasant Kunj, New Delhi. PW42 Sarfraj ahmad, who resided at this address, has testified that no society by the name of National Building Organization CGHS or Kevalya Vihar CGHS had functioned from the aforesaid address. Accused has not taken a specific defence as to whether he visited the said address or not. Presuming that he visited the said address, which rules and practices required him to do, it is clear that entire audit conducted by him is 139 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 bogus and dishonest because no society ever worked at that address. However, if it is presumed that he did not visit the registered office, this court would have to see as to whether accused P. K. Thirwani was only negligent in conducting the audit or he prepared all the documents dishonestly. This will have to been seen from the records. One of the major evidence, which is coming on record is that on all the audit papers i.e. from page 1 to 53 of D10, the signatures of Anurag and Ved Prakash, Secretary and Treasurer, are available on almost each page and below their signatures accused P. K. Thirwani has put his signatures. As per the GEQD report, both signatures of Anurag and Ved Prakash have been put by accused P. N. Sharma. Ld. Public Prosecutor submits that this shows that accused P. N. Sharma was putting his signatures in all these documents in the presence of accused P. K. Thirwani as Anurag as well as Ved Prakash. This shows the dishonest intention of accused P. K. Thirwani. On the other hand, Ld. Defence Counsel submits that how can P. K. Thirwani know that the signatures of two office bearers were put by one person i.e. P. N. Sharma, because already signed documents were given to P. K. Thirwani.

I have already discussed while considering the role of accused P. N. Sharma as to how on each page referred above, accused P. N. Sharma has signed as Anurag and also as Ved Prakash. In his 140 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 brief summary Ex.PW59/DA placed at page 58 of D10, he has mentioned that audit of the society had commenced on 2.5.2003 and was completed on 5.5.2003. In column 10 of this brief summary (Page 57) P. K. Thirwani has written that the M.C. Members are taking full interest in the society. How he mentioned this fact without visiting the registered office and without meeting office bearers of the society. The manner in which the signatures are available of Anurag and Ved Prakash and the manner in which P. K. Thirwani has put his signatures below their signatures (both signed by P. N.Sharma), clearly shows that these signatures have been put in the presence of accused P. K. Thirwani. This conduct of accused must be seen in view of the circumstances that he is not taking any specific stand as to whether he went to the registered office or not. This shows dishonest intention and complicity of this accused with accused P. N. Sharma. I also disagree with the submission that audit of the society had no connection with the conspiracy. The revival was passed subject to the order of audit and election of the society. Had the audit not been fake, the entire conspiracy would have come to light. Audit of the society is an authentic step towards showing a society with fake name and address, with fake members and office bearers in operational mode. This also proves that he was not only acting in conspiracy with P. N. Sharma, but also with Narayan Diwakar, who had appointed him 141 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 for this work.

CONSPIRACY The circumstances discussed above clearly show that an application for revival of the society is coming after 23 years after its winding up. All the documents presented to it are fake. The office bearers are fake. The members enrolled are fake. The resignation letters and enrollment letters of the members are fake. The affidavits filed on behalf of members and office bearers are also fake. 114 fake members were enrolled before the society was would up in the year 1979 but it drew no one's attention right from the dealing clerk up to the Registrar. The fact that these 114 members, who became so active that in a short time their strength rose from 35 to 114 but thereafter did not interact with the RCS office, is absolutely unbelieveable and could not have been ignored by the dealing clerk, AR and the Registrar by any logic except that they were acting with dishonest intention. I may point out that question of negligence on part of the public servants is completely ruled out because all of them have applied their minds well while writing the notings and the orders. It is not a minor irregularity but a glaring fact, which should have made all the officials of the RCS extremely alert, which is not the case here. The election is conducted but the same was bogus. Bogus audit is being conducted by the auditor. Both the officials, who conducted elections and audit, are 142 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 RCS officials. No one asked for any identity proof from the office bearers. No one visits the registered office of the society despite the fact that not only the name of the society is changed but even the address is changed. All these circumstances irresistibly lead to the conclusion that all the accused persons were fully aware as to what was happening in the society. Still the freeze list of 114 fake members was approved, which shows that they were also taking active part as active actors of the conspiracy. Earlier, I have dealt with the role of each accused separately. But here it is necessary to see the circumstances as a whole. I may refer to Lemard Schussler Vs Directorate Enforcement AIR 1970 SC 548 wherein Hon'ble Supreme Court has stated that an independent act in a conspiracy may not strictly amount to an offence, therefore the entire transaction must be viewed as a whole and it has to be ascertained as to what in fact the conspirator intended to do or the object they wanted to achieve.

In view of all above mentioned circumstances, it becomes clear that note sheet, passing of revival order and sending the list of 114 members to DDA by the public servants, are only a tip of the ice berg . The under water portion of the ice berg i.e. the conspiracy, which was being actively executed by all the accused persons, is 9/10th. Therefore, the major part of the offence i.e. hobnobbing of the public servants with accused P. N. Sharma are the activities, which are 143 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 beyond the purview of Section 197 CrPC. I have already discussed that question of sanction under Section 197 CrPC would be relevant to accused Narayan Diwakar only because in respect of other public servants, valid sanctions under Section 19 of Prevention of Corruption Act had been obtained.

OFFENCE PROVED In view of above discussions, I hold that prosecution has proved its case beyond reasonable doubt against all the accused persons. Therefore, I convict all the accused persons i.e. Narayan Diwakar (A1), Jitender Singh Sharma (A2), Rakesh Kumar Sharma (A3), Prahlad Kumar Thirwani (A5), Prem Narain Sharma (A6) under Section 120B read with Section 418/468/471 IPC and read with Section 13(2)/13(1)(d) of Prevention of Corruption Act 1988.

I further convict accused Narayan Diwakar (A1), Jitender Singh Sharma (A2), Rakesh Kumar Sharma (A3) and Prahlad Kumar Thirwani (A5) under Section 15 read with 13(1)(d) of Prevention of Corruption Act 1988.

I further convict accused Prem Narain Sharma (A6) under Section 418/468/471 IPC.

Announced in the open court on 30.5.2013.

(VINOD KUAMR) Special JudgeII, CBI, Rohini Courts, Delhi 144 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 IN THE COURT OF SPECIAL JUDGEII (PREVENTION OF CORRUPTION ACT, 1988) CBI: ROHINI: DELHI CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 u/s 120B r/w Section 420/467/468/471 IPC & 13(2) r/w 13(1)(d) P.C. Act.

RC No. : BD1/2006/E/0002BS&FC ID No. : 02404R0436752006 Central Bureau of Investigation Vs

1. Narayan Diwakar, s/o Late C. Lal r/o G30, Masjid Modh, Greater KailashII New Delhi.

2. Jitendra Singh Sharma, s/o Late N.S. Sharma r/o 1073/A3, Ward No. 1, Mehrauli, New Delhi.

3. Rakesh Kumar Sharma, s/o M.L. Sharma r/o 2989/1E, Street No. 16, Old Ranjeet Nagar, New Delhi.

4. Prahlad Kumar Thirwani, s/o Late Moti Ram Thirwani r/o 348E, PocketII, Mayur Vihar, PhaseI, Delhi.

5. Prem Narain Sharma @R.P. Sharma @ Ram Prakash Sharma, s/o Sh. R.S. Sharma, r/o Flat No. 231, Pocket5, Mayur Vihar PhaseI, Delhi.

145

CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 O R D E R O N S E N T E N C E 31.05.2013 Present: Sh. Amrit Pal Singh, Ld. Public Prosecutor for CBI.

All the convicts are present.

Sh. R.P. Shukla, Adv. for convict Rakesh Kumar Sharma. Sh. Yogesh Verma, Adv. for convict Prem Narain Sharma. Ld. Public Prosecutor prays for maximum sentence for convict Prem Narain Sharma on the ground that he, despite being a public servant, has indulged in large scale forgeries. Therefore, such a person should be given maximum punishment.

Regarding the remaining convicts, it is submitted that it is the third conviction for convict Narayan Diwakar and Prahlad Kumar Thirwani whereas convict Jitender Singh Sharma is being convicted for the second time. It is argued that convict Rakesh Kumar Sharma is the first time convict. Ld. Public Prosecutor prays substantial punishment for all these convicts.

On the other hand, all the convicts have prayed for a very lenient view in view of the fact that all of them have suffered a lot during the trial.

I have considered all the facts and circumstances of this case and I sentence the convicts as under:

(i) I sentence all the convicts to rigorous imprisonment for 146 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 one year and a fine in the sum of Rs. 100/ each u/s 120B IPC r/w Section 418/468/471 IPC r/w Section 13(2) & 13(1)(d) of the Prevention of Corruption Act, 1988. In default of payment of fine, they shall undergo simple imprisonment for seven days.

(ii) I further sentence convict Narayan Diwakar, Jitender Singh Sharma and Prahlad Kumar Thirwani to rigorous imprisonment for one year and six months and a fine in the sum of Rs. 100/ each u/s 15 r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. In default of payment of fine, they shall undergo simple imprisonment for seven days.

(iii) However, convict Rakesh Kumar Sharma is sentenced to rigorous imprisonment for one year u/s 15 r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 with fine of Rs. 100/ and in default of payment of fine to undergo simple imprisonment for seven days.

(iv) I sentence convict Prem Narain Sharma to rigorous imprisonment for one year u/s 418 IPC.

I further sentence convict Prem Narain Sharma to rigorous imprisonment for three years and fine of Rs. 100/ u/s 468 IPC. In default of payment of fine, he shall undergo simple imprisonment for seven days.

I also sentence him to rigorous imprisonment for three 147 CBI Vs Narayan Diwakar etc. (National Building CGHS) CC NO. 44/10 Judgment dt. 30.5.2013 years with fine of Rs. 100/ u/s 471 IPC and in default of payment of fine to undergo simple imprisonment for seven days.

All the sentences of all the convicts shall run concurrently. Copy of the judgment be supplied free of cost to all the convicts. File be consigned to record room.

Announced in the open court on this 31st day of May, 2013 (Vinod Kumar) Spl. JudgeII, CBI Rohini/31.05.2013

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